Swindale and Comcare (Compensation)

[2019] AATA 2426

Swindale and Comcare (Compensation) [2019] AATA 2426 (7 August 2019)

Division:GENERAL DIVISION

File Numbers:         2016/4381 & 2016/4529

Re:Neil Swindale

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President R I Hanger AM QC

Date:7 August 2019

Place:Brisbane

The decision under review is affirmed.

............................[SGD]..........................................

Deputy President R I Hanger AM QC

Catchwords

COMPENSATION – Whether Comcare is liable to pay compensation – whether Comcare is liable for a claimed psychological condition - massage treatment – anti-depressants as treatment for a back condition – where psychological condition diagnosed significantly after accident – decision under review affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Kirkpatrick v Comcare (1985) 9 FCR 36

Secondary Materials

“Massage for low-back pain” Cochrane Database of Systematic Reviews 2015 (The Cochrane Review), 1 September 2015

REASONS FOR DECISION

Deputy President R I Hanger AM QC

7 August 2019

INTRODUCTION

1. The Applicant seeks a review of a reconsideration decision of the Respondent dated

   
   

   13 July 2016 which affirmed two determinations each dated 5 May 2016.

2. The first determination which was affirmed on review, determined that the Respondent is not liable to pay compensation to the Applicant under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for massage treatment and antidepressants as medical treatment for aggravation of the “left L5/S1 disc protrusion”, sustained on 23 August 1996, which is the accepted condition.

3. The second determination which was affirmed on review, denied liability under section 14 of the Act for “adjustment disorder with depressed mood” which is the claimed psychological condition.

   BACKGROUND AND CLAIMS HISTORY

4. The Applicant was injured at work in 1994. While working for the Department of Administrative Services, he was rolling a 44 gallon drum on the tray of a truck when he slipped but managed to hang onto the drum. He developed pain and stiffness in his lower back which persisted. He attended his general practitioner and was given a week off work. He then went on holiday and during the holiday he collapsed with an acute episode of lower back pain and left-sided sciatica. He was taken by ambulance to hospital and subsequently underwent a laminectomy for a disc protrusion at the L4/S1 level, performed by Dr A.W.M. Hunn. After three months away from work he made a graduated return to work and returned to full-time duty.

5. He gave evidence, and it is supported by a statement of Dr W. Max Wearne, Consultant Orthopaedic Surgeon, in his report of 12 May 1999, that the Applicant experienced no pain in his back for the next 18 months.[1]

   [1]     Exhibit 5, T Documents, T11, pages 23 – 30, Report of Dr W. Max Wearne, dated 12 May 1999.

6. In about April 1996, the Applicant began to experience niggles of pain and in August 1996 after performing some raking at work, he began to experience significant aching in his back which became associated with sciatic pain in his left leg. His general practitioner,

   
   

   Dr D. McLeod, referred him for a CT scan which showed a disc fragment extruded at L5/S1. Dr McLeod gave him a few days off work and certified him as fit for modified duties with no bending and no lifting of loads in excess of 10kg.[2] The 1996 aggravation was managed conservatively.

   [2]     Exhibit 5, T Documents, T4, pages 10 – 11, Report of Dr D. McLeod, dated 23 September 1996.

7. From the end of 1996, the Applicant appears to have been recovering well and maintaining a good level of capacity. He was having minimal treatment, minimal time off work, exercising, performing his leisure activities, and working 34 hours a week subject to the restriction on lifting.

8. He was reviewed by Dr Hunn on 20 and 27 June 1997.[3] He complained of intermittent recurrent episodes of back and left leg discomfort interspersed with periods of time where his symptoms were minimal or absent. Dr Hunn reported the Applicant had generally coped with his symptoms or if time off work was required, had dealt with it within the parameters of his access to flex days rather than making claims upon workers compensation. He attributed the symptoms to his injury in 1994, and  reviewed a recent MRI scan which showed evidence of the previous surgery with associated degenerative changes in the lower two lumbar discs. Dr Hunn suggested that future employment should move towards organisational and supervisory duties and away from duties requiring physical exertion and particularly recurrent lifting and bending. The Applicant was advised to lose weight and that manual work might continue to cause him problems.[4]

   [3]     Exhibit 5, T Documents, T7, page 15, Report of Dr A.W.M Hunn, dated 27 June 1997.

   [4]     Exhibit 5, T Documents, T9, pages 17 – 18, Report of Dr D. McLeod, dated 26 February 1999.

9. His GP, Dr McLeod, reported that the Applicant did as advised by Dr Hunn and had managed his lumbar disc disease conservatively but was still experiencing exacerbation of pain caused, in the doctor’s opinion by the damage to his disc and degenerative L5/S1 changes. He recommended analgesics, intermittent anti-inflammatories and gym work to improve general fitness.[5]

   [5]     Exhibit 5, T Documents, T9, pages 17 – 18, Report of Dr D. McLeod, dated 26 February 1999.

10. The Applicant took voluntary redundancy on 8 September 1997 and accepted employment as a warehouse manager with a private company, Radcliffe Transport. He continued in that position for some time and continued to work the same number of hours per week.

11. On 12 May 1999, he was reviewed and examined by Dr Wearne who reported that the Applicant had managed his sciatic symptoms with exercise and hydrotherapy, the symptoms had worsened since ceasing those activities in February 1999, and that he continued to work the same hours that he had been working since late 1996. He told

    
    

    Dr Wearne that heavier work aggravated his symptoms and that at work he was happier when walking about. He said that for relaxation, he continued to enjoy diving only made possible because he did not have to carry a scuba tank on his back and was diving with air pumped from the surface. [6]

    [6]     Exhibit 5, T Documents, T11, pages 23 – 30, Report of Dr W. Max Wearne, dated 12 May 1999.

12. On examination Dr Wearne noted that there was no loss of muscle power and that the Applicant could heel and toe walk, and could perform a straight leg raise to 50° on both sides. The doctor recommended controlling his weight and maintaining a level of physical fitness to protect his back and to continue with his current workload of 34 hours per week.

13. The Applicant was absent for work for six months from December 1999 to May 2000. Records from his employer, although summonsed, were not produced. The Applicant denied having any idea as to why he was off work for six months at that time. The documents, to which I have access, do not indicate an intervening event but rather indicate a recurrence of his previous condition. The medical assessment on 3 December 1999 refers to recurrent disc protrusion and that the presenting symptoms were sciatica from an incident occurring in 1994 when he was rolling a 44 gallon drum.

14. The Respondent suggests that the six months off work from December 1999 must have been caused by a new intervening event occurring about that time when he was not employed by the Respondent. The Respondent points to the fact that at the time of the initial aggravation of his back problem on 23 August 1996, he was certified fit for work on the following working day which was a Monday (that is three days after the event). In 1999, something happened that caused him to be off work for six months. The Respondents submits that the Applicant’s back condition evolved and worsened and ceased being materially contributed to by the 1996 aggravation at some point between the re-aggravation in 1999 and 5 May 2016. The Respondent argues that by the time of the determination in May 2016, the 1996 incident was not a material contribution to the Applicants back condition.

15. I cannot accept the Respondent’s argument in that respect.  

16. Doctor Gavin Farr, Orthopaedic Surgeon, had provided a report to the Respondent dated 2 December 2002, following a request by the Respondent for a medical assessment.[7]

    
    

    Doctor Farr was asked to assess of the degree of permanent impairment suffered by the Applicant as a result of the aggravation of left L5/S1 disc protrusion suffered on 23 August 1996. He said that the 23 August 1996 injury was an aggravation of an original disc prolapse of 1994 and that the Applicant’s condition at that time [referring to the assessment in 2002] appeared to be a consequence of that disc prolapse.

    [7]     Exhibit 5, T Documents, T16, pages 38 – 44, Report of Dr G. Farr, dated 2 December 2002.

17. Doctor Wearne reassessed the Applicant in June 2010 and expressed the opinion on the balance of probability that the condition suffered by the Applicant at the time was due to the effects of the injury suffered at work on 23 August 1996.[8]

    [8]     Exhibit 5, T Documents, T19, page 58, Report of Dr W. Max Wearne, dated 9 June 2010.

18. Doctor Stanley Clarke, Orthopaedic Surgeon, provided a supplementary report dated

    
    

    29 October 2018 in which he said: “[h]is diagnosis dates back to a lumbar disc prolapse of L5/S1 following an injury at work in 1994. He has subsequently had chronic low back pain and leg pain for which he has received conservative management”.[9]

    [9]     Exhibit 11, Supplementary Report of Dr D. Stanley-Clarke, dated 29 October 2018.

19. I am satisfied taking into account both the medical evidence and the evidence of the Applicant himself that the injury to his back that he suffered in 1994 and was exacerbated by the event in August 1996 has continued since that time. At times it has been debilitating for him and at other times he has been able to function reasonably well.

    ISSUES FOR DETERMINATION

20. The issues for determination by the Tribunal are whether:

    (a)the Applicant is entitled to compensation under section 16 of the Act for massage treatment (two, 30-minute treatments per week) and antidepressants as medical treatment for aggravation of an accepted spinal condition sustained on 23 August 1996; and

    (b)the Applicant’s claim for liability under section 14 of the Act for adjustment disorder with depressed mood (claimed psychological condition) can succeed.

    LEGISLATIVE REQUIREMENTS

21. The right to compensation for an employee under the Act is conferred by section 14(1) of the Act which provides that 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.

22. The right to compensation in respect of medical expenses under the Act is conferred by section 16(1) which 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.

23. Section 4 of the Act provides the definition for medical treatment, noting that the definition extends to: “therapeutic treatment by … a physiotherapist, osteopath, masseur…”.

24. “Injury” is defined in section 5A(1)(b) of the Act to mean, so far as this case is concerned:

    … 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...

25. “Disease” is defined in section 5B(1) of the Act to mean:

    (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.

26. “Impairment” is defined in section 4(1) of the Act to mean:

    the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

    MEDICAL TREATMENT

    Massage Therapy

27. The hearing focused very largely on massage treatment. The Applicant has received almost 1000 sessions of massage paid for by the Respondent between 1996 and 2016. The Applicant describes it as painful but says that the massage, which he describes as “deep tissue massage” relieves his sciatic pain for a number of days. He says that he has always chosen his masseurs very carefully to ensure that they have the ability to perform the type of massage that works for him. He believes that the alternative to relieving his pain with massage is to take opioid drugs. He objects to taking these on the basis that they are addictive and dangerous and very forcefully expressed the opinion a number of times that it would be much better for him to have his weekly or fortnightly massages rather than take addictive medications.

28. The Respondent’s case is that the massage therapy, on the present state of medical knowledge, has no beneficial effect and ceased to have beneficial effect a long time ago.[10] In a report dated 9 June 2010, Dr Wearne said that it was no longer reasonable for the Applicant to continue with massage treatment as he considered that the massage would have little if any therapeutic value after 11 years.[11] 

    [10]    Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, dated 27 July 2018.

    [11]    Exhibit 5, T Documents, T19, page 60, Report of Dr W Max Wearne, dated 9 June 2010.

29. Doctor Peter Georgius is a pain and rehabilitation specialist who provided a report dated

    
    

    15 May 2018.[12] He made certain recommendations in relation to a drug regime and referred the Applicant to a physiotherapist with a view to developing an active, home-based patient initiated maintenance program which should be performed at least three times per week. He discussed with the Applicant passive therapies such as massage but does not appear to recommend it for the Applicant.

    [12]    Exhibit 13, Report of Dr P Georgius, dated 15 May 2018.

30. Doctor Stanley-Clarke provided a report dated 3 April 2017. He said that ongoing massage treatment would not be consistent with the principles of the clinical framework for the delivery of health services, and would not cure the Applicant’s compensable condition or significantly reduce its effects. He also thought it was not of therapeutic benefit and that massage only provides short-term benefit and there is no research to support long-term treatment.[13]

    [13]    Exhibit 10, Report of Dr D. Stanley-Clarke, dated 3 April 2017.

31. During the hearing the doctor was cross-examined by the Applicant in relation to continuing massage therapy and he said:

    “…if you were my patient I would be advising, much like Peter Georgius, a physical rehabilitation program with self-help exercise/activities or hydrotherapy or swimming activities, together with pharmaceuticals and those pharmaceuticals can be adjusted and indeed adjusted to the point where your dependency on Endone may be diminished… There is no evidence to suggest that almost 20 years down the track massage therapy on a continual basis can be supported.”[14]

    [14]    Transcript, pages 67 – 68.

32. Doctor Stanley-Clarke was asked whether there was research evidence supporting massage therapy as treatment for the compensable condition and referred to the Cochrane Review of 1 September 2015. That review analyses a series of other reviews and a summary of the main results is as follows: –

    “We included 12 new RCTs of massage for LBP [low back pain] in this Cochrane Review update. In contrast to our previous review (which was more positive), the current review shows that we have very little confidence that massage is an effective treatment for LBP. The results are conflicting for the long-term follow-up (massage versus inactive controls) and for the outcome of function (massage versus active controls), with some comparisons showing that massage is better than the control groups, and others showing no significant differences…

    Functional improvement was observed in participants with subacute and chronic LBP when compared with inactive controls, but only for the short-term follow-up.”[15]

    [15]

33. Of course, the Cochrane Review is a highly regarded publication but one must take into account that its work is based on statistics. The fact that a particular treatment is not established as being effective, in a group of patients, does not mean that it is not effective in some of those patients.

34. Doctor Ian Sale is a psychiatrist who explained that massage for the Applicant had become more than “a simple laying on of hands” and “that there was a strong psychological need involved…”.[16] He initially suggested that the Applicant should be weaned off the massages slowly, but in giving evidence in the hearing and being informed that the massage had been stopped about two years ago, he expressed the opinion that it should not be reinstated and any psychological benefit that it may have given had been overtaken by the subsequent cessation of the massage.

    [16]    Exhibit 9, Report of Dr I. Sale, dated 11 October 2017.

35. Doctor Hunn expressed the opinion in the report of 8 September 2017 that the Applicant had managed his continuing chronic recurrent left sciatic pain with massages once or twice a week and that had allowed him to continue to be active and controlled his pain level, perform maintenance around his property and mow his lawn, and keep his medication requirements for analgesia to a limited level. Dr Hunn says that when the entitlement to massages was withdrawn, the Applicant had required increased medication. He expressed the opinion that it was completely irrational that a decision had been made to prefer the Applicant taking addictive narcotic medication on a regular basis over having once or twice weekly massage therapy which enabled him to continue with a reasonable quality of life. He said, “I would strongly recommend that the decision to cease
    

    [17]    Exhibit 12, Report of Dr A.W.M Hunn, dated 8 September 2017.

    Mr Swindale’s access to massage therapy be reviewed in the interest of his long term health and in the interest of preserving a reasonable quality of life with him which he can be productive”.[17] The opinion of the doctor may be a very pragmatic one. He does not attempt in scientific terms or by reference to any literature to justify his recommendation. Nor has the doctor seen the Applicant for more than 20 years. In view of the opinions of the other doctors, and what appears to be the accepted wisdom at present, I cannot conclude that the reinstatement of massage treatment is justified.

    The claim for depression

36. On 1 April 2016, Dr McLeod diagnosed the Applicant with chronic back pain and chronic depression.[18] The Respondent treated this as a claim for liability for depression. The Applicant was referred to a psychiatrist in May 2016. For many years the Applicant has been taking a number of medications. Some of those medications at low doses are painkillers and in high doses are psychiatric drugs. In about 2015, one of his treating doctors changed one of his drugs from Amitriptyline to Lovan. The relevance of that switch is that Amitriptyline, although an antidepressant, is more commonly used as an adjunct to pain management. The dose prescribed to the Applicant in the past would be consistent with it being used for pain management rather than for its antidepressant effect. However Dr Sale points out that Lovan, in contrast, is a more specific antidepressant.

    [18]    Exhibit 5, T Documents, T34, page 106, Report of Dr D. McLeod completed 1 April 2016 as an attachment to correspondence sent to Comcare by the Applicant on 3 April 2016.

37. The Applicants Commonwealth employment ceased in September 1997. The diagnosis of his psychological condition was not made until April 2016. The Respondent submits that the psychological condition was caused by a letter the Respondent wrote on 10 March 2016. That letter advised the Applicant that the medical evidence suggested that massage and antidepressants were not considered as reasonable medical treatment for his compensable condition. The letter said that the Respondent had paid for Endep commencing around 2001, as well as Lovan and Fluoxetine and that Comcare had not made a formal determination regarding the Applicant’s psychological condition. The letter requested medical evidence to establish the relationship of “depression” and that compensable condition of “aggravation of left L5/S1 disc protrusion”.

1. The Respondent relies on the decision of the full Federal Court in Kirkpatrick v Comcare (1985) 9 FCR 36 which is authority for the proposition that a condition arising as a result of the compensation process is not compensable.

2. On 5 May 2016, the Respondent advised the Applicant that he had no present entitlement to compensation in respect of massage and antidepressants under section 16 of the Act.[19] That letter relates to the back condition. On the same day, the Respondent rejected his claim for the secondary condition of depression on the basis that there was insufficient evidence to establish a causal link between his compensable injury and his depression under section 14 of the Act.[20]

   [19]    Exhibit 5, T Documents, T35, pages 107 – 109, Correspondence from Respondent to Applicant, dated 5 May 2016.

   [20]    Exhibit 5, T Documents, T36, pages 110 – 111, Correspondence from Respondent to Applicant, dated 5 May 2016.

3. In a report dated 27 May 2016, Dr David Weidmann, Psychiatrist, expressed the opinion that the Applicant is suffering from: “a clear Adjustment Disorder – depressed mood, characterised by irritable mood, sleep problems, instability of affect and thoughts of suicide” as a result of his accident.[21]

   [21]    Exhibit 5, T Documents, T38, page 121, Report of Dr D. Weidmann, dated 27 May 2016.

4. At interview with Dr Sale in 2017, the doctor gained the impression that there had been a decline in the Applicant’s ability to cope with his back problems. He was withdrawing from a number of activities, had become less sociable, his mood was persistently low, he slept poorly at night, was fatigued during the day, and he had “probably” increased his use of alcohol. The doctor noted that the Applicant had a strong sense of grievance about the Respondent, which had become a scapegoat for his difficulties. Dr Sale expressed the opinion that the Applicant was suffering from a depressive disorder and it would probably be reasonable to regard that “as an adjustment disorder with depressive symptoms i.e. a situational condition.” Dr Sale says these issues appear to stem from the belief of the Applicant’s that the Respondent’s attitude to his massage treatment has been inconsistent. He regards the psychiatric condition as almost entirely a complication of the back problem but opines that there is a significant contribution to his mental state made by his relationship with the Respondent.[22]

   [22]    Exhibit 7, Report of Dr Ian Sale, dated 1 February 2017.

5. Doctor Sale was also called to give evidence. There is a degree of inconsistency between the doctor’s reports and his evidence. This may be as a result of having access to more information than he had when writing the reports. While in his reports he attributes the adjustment disorder almost entirely to the back condition with some other contributing factors such as the Applicant’s relationship with the Respondent, in his evidence he said that examining the very comprehensive records available, and in particular the GP records from 2004 onwards, he was satisfied that the Applicant was not suffering from significant psychological problems before 2010. He referred to the fact that the Applicant had been prescribed Amitriptyline from about 2004, but that in the doses prescribed it was being used as an adjunct to treatment for pain and for sleeping. That medication was prescribed intermittently between 2004 and 2011, but then it was changed to Duloxetine which is a true anti-depressant medication which is also used in pain management. That was not continued for long and in early 2014, he was prescribed Fluoxetine which has a purely anti-depressant role. The doctor gave evidence that in his opinion arising both from reading the documentation and from his contact with the Applicant that the symptoms in 2014 arose because the Applicant felt extremely aggrieved and distressed about his conflict with the Respondent and particularly over the issue as to whether he should receive funding for massage treatment.

6. It is understandable that a person with permanent back pain is likely to get depressed about the loss of a lifestyle. However it does appear from all the evidence that the Applicant with fortitude, coped with his disability very well until his various disagreements with the Respondent occurred. The evidence appears to suggest that there was not a psychological condition until many years after the initial injury. The psychological condition appears to have been precipitated by disagreements with the Respondent about treatment and in particular about massages. That is not compensable.

7. Based on the medical evidence; the contemporaneous records; and the attitude of the Applicant towards the Respondent with respect to both its decision to cease paying for massage treatment and in these proceedings generally, I am satisfied that there is no significant employment contribution to the claimed psychological condition. It arose out of his frustration with the Respondent and various other matters that were occurring in his life at the time which caused him frustration.

   CONCLUSION

8. The decision under review is affirmed.

46.     I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger AM QC

.....................[SGD]..............................

Associate

Dated: 7 August 2019

Dates of hearing:	27 and 28 May 2019
Applicant:	In person (self-represented)
Counsel for the Respondent:	Ms Sarah Wright
Solicitors for the Respondent:	Australian Government Solicitor

   Andrea D Furlan, Mario Giraldo, Amanda Baskwill, Emma Irvin and Marta Imamura, “Massage for low-back pain” Cochrane Database of Systematic Reviews 2015 (The Cochrane Review) published

1 September 2015.