Thoreau and Comcare (Compensation)
[2018] AATA 1517
•8 June 2018
Thoreau and Comcare (Compensation) [2018] AATA 1517 (8 June 2018)
Division:GENERAL DIVISION
File Number: 2016/4289
Re:Tania Thoreau
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:8 June 2018
Place:Brisbane
The decision under review is affirmed.
.........................[sgd]...............................................
Senior Member Theodore Tavoularis
CATCHWORDS
COMPENSATION – medical treatment – therapeutic treatments – previously accepted injuries – where liability for the Applicant’s condition of bilateral epicondylitis was accepted – where Applicant has received compensation for some 700 remedial massage sessions for her accepted condition – section 16 of the Safety Rehabilitation and Compensation Act 1988 (Cth) – whether the Applicant continues to suffer from her accepted condition – whether massage treatment is “medical treatment” for her condition – whether it is reasonable for the Applicant to continue to receive the massage treatment – Applicant does not continue to suffer from accepted condition – the massage treatment is not medical treatment for her accepted condition – it is not reasonable for the Applicant to continue to receive the massage treatment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 16, 19, 24, 27, 29
CASES
Alamos and Comcare
[2014] AATA 629
Biba Evans and Comcare [2016] AATA 827
Chowdhary and Comcare[1998] AATA 448
Comcare v Rope[2004] FCA 540
Durham and Comcare[2014] AATA 753
Holt v Comcare(2007) 94 ALD 576
Popovic and Comcare[2000] AATA 246
Prain v Comcare[2017] FCAFC 143
Rope and Comcare [2013] AATA 280
Re Jorgensen and Commonwealth of Australia(1990) 23 ALD 321
SECONDARY MATERIALS
Clinical Framework for the Delivery of Health Services
REASONS FOR DECISION
Senior Member Theodore Tavoularis
8 June 2018
INTRODUCTION
Ms Tania Thoreau (“the Applicant”) has suffered an elbow injury for which she has claimed compensation from Comcare under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Comcare has accepted liability for the Applicant’s “aggravation of lateral epicondylitis (bilateral)” suffered on 30 July 2001.
The Applicant has claimed compensation under s 16 of the Act for her injury since 2001. Over this time, she has, inter alia, successfully claimed approximately 700 sessions of massage therapy.[1]
[1] Exhibit 8, Comcare Claim Invoice Line Item List.
In a determination dated 21 March 2016, Comcare determined that compensation was no longer payable for the Applicant’s massage treatments pursuant to s 16 of the Act.
Comcare’s determination was upheld in a reviewable decision dated 16 June 2016. The Applicant now seeks review of this reviewable decision. Her application for such review was lodged with this Tribunal on 16 August 2016.
ISSUES
In light of the above, the Tribunal must determine the following issues:
(a)Does the Applicant continue to suffer from epicondylitis (bilateral) which condition is said to constitute the “injury” pursuant to s 16 of the Act?
(b)If the answer to (a) is “yes”, the next two questions become:
(i)Whether the claimed massage treatment constitutes “medical treatment” pursuant to the Act?; and
(ii)Is it reasonable for the Applicant to obtain such treatment on the basis that it remediates her symptoms “in relation to the injury” as is also required under the Act?
As noted by the Respondent,[2] the onus of persuading the Tribunal of the correctness and appropriateness of Comcare’s decision to cease payments for massage treatment lies with Comcare, which, of course, is the Respondent in these proceedings.
[2] See Exhibit 15, Respondent’s Written Submissions, [6].
ISSUE A: LIABILITY UNDER SECTION 16 OF THE ACT
Before assessing the Respondent’s liability pursuant to s 16 of the Act, it is important to ascertain the scope of the Respondent’s liability under that provision.
The Legislative Framework
The Respondent’s liability to compensate the Applicant for any of her treatments is determined in accordance with s 16(1) of the Act, which reads:
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 Act, in turn, defines “medical treatment” as:
…
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; 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
…
(i)any other form of treatment that is prescribed for the purposes of this definition.
“Therapeutic treatment”, meanwhile, “includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”.
In considering these definitions, it becomes apparent that s 16 of the Act imposes a test that has both subjective and objective elements: the Tribunal must determine whether the treatment is objectively reasonable given the subjective circumstances of an applicant’s injury. I note that this subjective element is restricted to the state of the Applicant’s injury.[3]
[3] Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321, 325 (Gray J).
Due to the very nature of the test, the list of factors the Tribunal may take into account in making this assessment varies. However, in Alamos and Comcare,[4] Deputy President Constance considered the following factors as a helpful, non-exhaustive list:
·the benefit of the treatment to the injured worker;
·the long-term effects 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.[5]
[4] [2014] AATA 629.
[5] Alamos and Comcare [2014] AATA 629, [24] (DP Constance).
In a similar vein, Mansfield J in Comcare v Holt gave examples of some circumstances where the treatment would be unreasonable, which included:[6]
·“where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances”;
· “where proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar treatment had previously been undertaken”; and
·“where treatment like the proposed treatment which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience”.
[6] Comcare v Holt [2007] FCA 405, [25]-[26].
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.[7] Indeed,
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[8]
[7] [2000] AATA 264, [28]-[29].
[8] Chowdhary and Comcare [1998] AATA 448, [53].
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”).[9] 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 amended Statement of Facts, Issues and Contentions (“SFIC”)[10], as did Associate Professor Neil McGill in his first report.[11]
[9] See e.g. Alamos and Comcare [2014] AATA 629, [32]-[33]; and Durham and Comcare [2014] AATA 753 (SM Ettinger), [56]-[58].
[10] Exhibit 10, Respondent’s amended SFIC, dated 3 April 2018, [5.8].
[11] Exhibit 11, Report of Associate Professor Neil McGill, Rheumatologist, dated 27 April 2017.
The Clinical Framework lists the guiding principles as:
1Measure and demonstrate the effectiveness of treatment
2Adopt a biopsychosocial approach
3Empower the injured person to manage their injury
4Implement goals focused on optimising function, participation and return to work
5Base treatments on the best available research evidence.[12]
[12] Clinical Framework, p 2.
Particularly relevant in considerations such as this is point 3, “Empower the injured person to manage their injury”. The Clinical Framework later elaborates on this point:
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.[13]
Does the Applicant continue to suffer from epicondylitis (bilateral) which condition is said to constitute the “injury” pursuant to s 16 of the Act?
[13] Ibid, p 12.
It is necessary for the Applicant to demonstrate that she continues to suffer an “injury” for the purposes of the provisions facilitating payment for treatment of derivative conditions as those provisions appear in the Act.[14] This, in turn, requires the Applicant to meet the necessary causative threshold appearing in the Act.[15]
[14] See ss 16, 19, 24, 27 and 29 of the Act.
[15] See Prain v Comcare [2017] FCAFC 143.
This causative threshold is derived from a combined application of sections 5A and 5B of the Act. It is necessary for present circumstances for the Applicant to demonstrate that she suffers from an “injury” comprising “a disease suffered by an employee” pursuant to s 5A. It is then necessary for her to demonstrate that she continues to suffer from a “disease” as that term is defined in s 5B. Specifically, the Applicant must demonstrate that she presently suffers from:
(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.
The contest of medical opinion primarily devolved to three medical experts. The Applicant sought to rely on the opinions of the Rheumatologist, Dr Sayed Fayez and the Clinical Psychologist Dr Julie-May Brown. The Respondent sought to rely on the opinion of Associate Professor Neil McGill, Consultant Rheumatologist. The Applicant did not call either Dr Fayez or Dr Brown to give oral evidence at the hearing. The Respondent did, however, call Associate Professor McGill.
Associate Professor McGill examined the Applicant on 27 April 2017. He provided a report, also bearing that date, which was tendered in evidence at the hearing of this matter.[16] Associate Professor McGill’s findings were both stark and definitive. He could find no trace of symptoms relating to lateral epicondylitis and, further, thought the Applicant showed no sign of any disorder affecting her upper limbs. He also was of the view that it was not possible to relate her currently propounded symptoms to any of the work she did in 2001, or at any stage thereafter. Put simply, Associate Professor McGill thought the Applicant no longer suffers from the claimed injury:
Her examination today was normal for a lady of her age. Apart from minor DIP joint osteoarthritis, there was no sign of any upper limb physical disorder.
…
She reports symptoms, but there is no evidence of any injury or disease process underlying those symptoms and no evidence of impaired function or reduced use.
…
…If she had symptoms relating to lateral epicondylitis in 2001, those symptoms have resolved.
I cannot relate her current situation, through any physical means, to the work she performed in 2001 or in the years leading up to 2001 or between 2001 and 2004.[17]
(my underlining)
[16] Exhibit 11, Report of Associate Professor McGill, Consultant Rheumatologist, dated 27 April 2017.
[17] Ibid, p 6.
Associate Professor McGill’s abovementioned report drew a response from the Applicant. In July 2017, she consulted with the clinical psychologist, Dr Julie-May Brown, who produced a report dated 7 July 2017.[18] This report, at first blush, is solely relating to the Applicant’s purported condition of post-traumatic stress disorder (which is not subject to this claim), not to her elbow conditions (which are).
[18] Exhibit 6, Report of Dr Julie-May Brown dated 7 July 2017.
While not made out at the hearing to any level of reasonable clarity or comprehension, the Applicant sought to somehow cast doubt or to otherwise impugn Associate Professor McGill’s findings by introducing the possibility of an underlying psychological disorder as being behind her asserted physical symptoms and/or the history she provided to Associate Professor McGill. Dr Brown said:
Ms Thoreau attended ten intensive treatment sessions between May and July 2017. Presenting symptoms were consistent with Complex PTSD, emanating from being shot in the head at her workplace in 1970. I did not fully assess whether this condition was delayed onset, or simply an exacerbation of pre-existing symptoms. Nevertheless, symptoms appear to have been triggered during a recent medical assessment, during which she was unexpectedly required to outline her medical history. My impression is that Ms Thoreau had insufficient time to invoke her usual dissociative mechanism of protection during this process.[19]
[19] Exhibit 6, Report of Dr Julie-May Brown, Clinical Psychologist, dated 7 July 2017.
As I understood the Applicant’s submission, she experienced such levels of anxiety and stress during the consultation with Associate Professor McGill on 27 April 2017, that most, if not all, of Associate Professor McGill’s findings should now be either called into question or discounted by the Tribunal. I am not prepared to make any such finding and will not do so.
Dr Brown’s report was shown to Associate Professor McGill, who, in turn, produced a supplementary report dated 25 July 2017.[20] Associate Professor McGill initially noted that during his examination of her, the Applicant “…referred repeatedly to feeling under stress.” Associate Professor McGill further noted that
Assessment of the degree of stress that Ms Thoreau experiences is appropriately considered by a psychiatrist or psychologist. [The Applicant’s propounding of asserted psychological symptoms] does not lead to any change in the conclusions I expressed in my report [of 27 April 2017]. I confirm that apart from minor DIP joint osteoarthritis, there was no sign of any upper limb physical disorder. I further confirm that there is no connection, on the basis of any physical disorder, between her reported symptoms and her previous employment.[21]
[20] Exhibit 12, Report of Associate Professor Neil McGill, Consultant Rheumatologist, dated 25 July 2017.
[21] Ibid.
In response to this, the Applicant sought an opinion from the rheumatologist, Dr Sayed Fayez, whose report is dated 27 August 2017.[22] Dr Fayez noted and summarised the Applicant’s medical history and made these findings with reference to the claimed epicondylitis:
My impression with her situation is that she recently had an ultrasound, which did show evidence of chronic epicondylitis. She does have a physical finding with both medial and lateral epicondyal tenderness, which may correspond with the other findings, although with chronic epicondylitis, there is a possibility of increasing pain that have [sic] some impact on her pain symptoms.
…I am uncertain whether her epicondylitis which is found on ultrasound is part of her chronicity back in 2002. She did not have any investigation or if she did have any, it is not available to me.
I certainly feel that her findings could be difficult to prove or disprove but given the possibility of chronic epicondylitis, she does have some functional impairment… Her symptoms are also controlled with oral simple analgesics … I still feel that with her current findings may indicate a chronic epicondylitis and I feel this is more likely that she continued with her massage therapy although I am unable to confirm whether the funding would continue from her work related issues. From my point of view I am unable to confirm whether this chronic epicondylitis is an ongoing issue but given she is retired, it is unlikely that her current activities will make her symptoms reoccur.[23]
(My underlining)
[22] Exhibit 3, Report of Dr Sayed Fayez, Rheumatologist, dated 22 August 2017.
[23] Ibid.
Dr Fayez’s opinion is equivocal about two things: (1) whether the Applicant even continues to suffer from the claimed condition (“I am unable to confirm whether this chronic epicondylitis is an ongoing issue”); and (2) whether the symptoms have any current manifestation or are likely to reoccur (“…but given she is retired, it is unlikely that her current activities will make her symptoms reoccur”).
As also noted by the Respondent, Dr Fayez’s report “is focused on diagnosis rather than causation and, as a result, is only of limited assistance.” [24] Even on the issue of diagnosis, the report of Dr Fayez is, at best, equivocal. He is simply not sure whether epicondylitis is “…an ongoing issue,” or to what extent, if any, the symptoms are likely to reoccur, or whether they necessitate ongoing massage therapy treatments of the kind that the Respondent ceased paying for.
[24] Exhibit 15, Respondent’s Written Submissions dated 27 April 2018, [15].
It should also be noted that the Applicant did not make Dr Fayez available for cross-examination and the Respondent was thus denied the opportunity to test his findings to whatever extent they may have assisted the Applicant. The failure to call Dr Fayez also denied the Tribunal the opportunity to properly weigh his findings against those of Associate Professor McGill. While I make no formal adverse findings, this undoubtedly must go to the weight of this evidence compared to that of Associate Professor McGill, who did take the witness stand.
Associate Professor McGill was asked to comment on Dr Fayez’s report. He did so via his report dated 12 January 2018[25], in which he noted the following:
[Dr Fayez] described her history but did not give a specific description of current symptoms.
With respect to the possibility of epicondylitis, he noted that an ultrasound showed evidence of chronic epicondylitis. I presume that he was referring to the ultrasound performed 16 February 2016 which was reported to show “bony irregularity at the common extensor origin suggestive of epicondylitis with heterogeneity of the tendon on the right. No increased vascularity to suggest active inflammation. No tear”.
He recorded that she had “both medial and lateral epicondylar tenderness” (he did not state whether the finding was bilateral or unilateral) which he thought “may correspond with the other findings although with chronic epicondylitis, there is a possibility of increasing pain that may have some impact on her pain symptoms”. He further stated “I still feel that her current findings may indicate a chronic epicondylitis and I feel this is more likely that she continue with her massage therapy although I am unable to confirm whether the funding would continue from her work related issues (sic).”
The further information provided by Dr Fayez does not result in any change in the conclusions that I have expressed in my report of 27 April 2017. Dr Fayez does not report whether provocative manoeuvers for epicondylitis caused any greater discomfort than other manoeuvers and he did not report the presence or absence of tenderness in areas not relevant to epicondylitis. I think his view that “I am unable to confirm whether this chronic epicondylitis is an ongoing issue” was reasonable in light of the widespread upper limb symptoms, which she reported when I saw her.
In summary, no modification of my previously expressed views has arisen as a result of Dr Fayez’s report.[26]
[25] Exhibit 13, Report of Associate Professor Neil McGill, Consultant Rheumatologist, dated 12 January 2018.
[26] Ibid.
After careful consideration of the written medical evidence provided by Dr Fayez and Dr Brown (on behalf of the Applicant), and the written and oral evidence of Associate Professor McGill (on behalf of the Respondent), I prefer the opinion and evidence of Associate Professor McGill. As noted by the Respondent, the opinions of Associate Professor McGill are not affected by the difficulties and shortcomings with the findings of Dr Fayez which were noted by Associate Professor McGill. There can be no question that Associate Professor McGill’s report is current (with, of course, that of Dr Fayez). The important point about currency is that the next most recent report is that of the occupational physician, Dr David Fitzgerald, whose report dates from 27 December 2013.[27] There is also a report from a qualified remedial massage therapist dating from 19 June 2013.[28] The next most proximate report is from 2011.[29] The Tribunal should, to my mind, always be cautious about ensuring it follows the most recent and current medical evidence. The question presently before me is whether Comcare should pay for the Applicant’s massages from 2016 onwards. Her state in the period 2011-2013 – as attested to by these reports – is simply not relevant to the making of this finding, as it did not go to the Applicant’s state from 2016 onwards.
[27] Exhibit 14, T Documents, T 19, pp 62-67. Notably, Dr Fitzgerald resiled from the diagnosis of bilateral epicondylitis, instead preferring a more general pain diagnosis (at p 65).
[28] Ibid, T 17. pp 53-54, report of Kate Kearns.
[29] Ibid, T 16, pp 51-52, Report of Dr Angela Moore dated 14 September 2011.
The evidence and opinion of Associate Professor McGill and its persuasiveness when compared by the other medical reports at hand leads to a finding that the applicant no longer suffers from an “injury” and is thus not entitled to compensation (in the form of the Respondent meeting the cost of ongoing remedial massage sessions) pursuant to s 16 of the Act.
Accordingly, I find that the Applicant does not continue to suffer from epicondylitis (bilateral), which the Applicant propounds as an “injury” pursuant to s 16 of the Act. No compensation is therefore payable for it.
Given this finding, it is not necessary for me to consider the residual issues of:
(a)Whether the claimed massage treatment constitutes “medical treatment” pursuant to the Act; and
(b)Whether it is reasonable for the Applicant to obtain such treatment on the basis that it remediates her symptoms “in relation to the injury” as is also required under the Act.
However, out of an abundance of caution and for the sake of completeness, I will consider these two questions.
ISSUE B – DOES THE CLAIMED MASSAGE TREATMENT CONSTITUTE “MEDICAL TREATMENT” AND IS IT REASONABLE FOR THE APPLICANT TO CONTINUE TO RECEIVE SUCH TREATMENT?
Applicable legislation and the Clinical Framework[30]
[30] I have previously summarised the applicable legislation, Clinical Framework and relevant case law in a previous decision on largely analogous facts. That decision was in the matter of Biba Evans and Comcare [2016] AATA 827. For referential purposes, I have re-stated my summary of these elements as they may apply to the present facts.
The Applicant wants the massage therapy treatment to continue, much as it did until March 2016. The Respondent contends that (a) compensation for ongoing massage therapy treatment obtained from circa 2001 until March 2016 should be denied to her from March 2016 onwards; and (b) that the Clinical Framework is the appropriate benchmark by which the objective reasonableness of this ongoing massage therapy treatment can be measured. I agree with the Respondent’s two contentions.
As outlined earlier, the Respondent’s primary liability to meet the cost of any ongoing massage therapy treatment derives from s 16(1) of the Act. The amount of those payments is “such amount as Comcare determines is appropriate to that medical treatment.” Further, s 4(1) of the Act defines “medical treatment” as “(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner”; or “(d) therapeutic treatment by, or under the supervision of a… masseur… registered under the law of a State of Territory providing for the registration of… masseurs…”.
There is a further definition of “therapeutic treatment” in s 4(1) of the Act, which includes “an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purposes of alleviating, any injury,” [my underlining].
To my mind, the scheme of the Clinical Framework militates against any assumption by a decision maker that it is in order to approve a single and seemingly endless mode of treatment of an Applicant’s accepted condition.
The Clinical Framework guides both medical professionals and decision makers towards a multi-faceted regime of treatment. It alerts one to a range of paradigms – be they biological, psychosocial or social – from which individual treatments can be conceived into an implemented management plan. The Clinical Framework talks about the achievement of functional goals and, depending on the circumstances of a given case, eventual self-management. Applicable case law
The clear trend of the authorities is one of treatment whose purpose is to cure or alleviate an injury. To my mind, this is consistent with my preceding comments about the largely remedial nature of the Applicant’s medical evidence insofar as justification for ongoing physiotherapy is concerned.
Two examples of this appear in the cases of:
(i)Rope and Comcare [2013] AATA 280 at [31] – the Tribunal required the funded therapy to be a “purposeful activity designed, or aimed at, curing or alleviating an injury in which… a person does something in the exercise of his or her skill which is designed to alleviate an injury.”
(ii)Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321 at 325 – the Tribunal noted that “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 the details of the personal life of an applicant for compensation…”
A previous case quite similar to the present factual circumstances arose in Alamos and Comcare.[31] In Alamos, an Applicant who had suffered a ligamentous back strain in 2000 received compensation for more than 300 physiotherapy treatments from 2006 to 2014. Deputy President Constance put it aptly when he said:
[31] [2014] AATA 629, following the approach adopted by the Tribunal in the cases of Popovic and Comcare [2000] AATA 246 and Chowdhary and Comcare [1998] AATA 448.
In considering this requirement [i.e. the requirement in s 16(1)], it is necessary to consider all of the circumstances, and not only the beneficial effects experiences by Mrs Alamos.
Without intending this list of be exhaustive, some of the factors which may be relevant considerations in the circumstances are:
othe benefit of the treatment to the injured worker;
othe long-term effect of the treatment;
owhether the treatment is likely to cure the injury or significantly reduce its effects;
owhether the treatment maintains the status quo;
othe cost of ongoing treatment. [32]
[32] Alamos and Comcare [2014] AATA 629 at [23] – [24] (Deputy President Constance).
The law applied to this case
Applying Deputy President Constance’s comments to the present facts and, with particular reference to the overall theme apparent from her medical evidence – especially when contrasted with the evidence of Associate Professor McGill – I am not convinced that long-term physiotherapy is in the best interests of this Applicant.
Deputy President Constance placed significant weight (as I do) on the Clinical Framework referenced by the Respondent. He noted that:
One of the stated principles of the 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.[33]
(footnotes omitted)
[33] Ibid at [33], quoting the Clinical Framework at pages 9 and 12.
Unpalatable though it may seem, it is necessary for consideration to be given to a determination of whether lengthy and ongoing treatment meets the requirements of a cost-benefit analysis. This analysis essentially involves the comparative cost of treatment against its therapeutic value. In Comcare v Holt,[34] Mansfield J, agreeing with the approach of Stone J in the abovementioned case of Comcare v Rope,[35] thought it appropriate to undertake such a cost-benefit analysis and made these observations:
…There may be circumstances where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances.
…The extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant…There may be cases… where treatment like the proposed treatment which in the past has had therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience.[36]
[34] (2007) 94 ALD 576.
[35] [2004] FCA 540.
[36] Holt v Comcare (2007) 94 ALD 576 at [25]-[26] (Mansfield J).
Medical evidence about the Clinical Framework
At this juncture, it is necessary to have regard to Associate Professor McGill’s findings with specific reference to the stated Principles appearing in the Clinical Framework. Associate Professor McGill says these things about the necessity for ongoing massage treatment, with reference to the five principles in the Clinical Framework:
Putting aside the cause of her diffuse upper limb symptoms, with respect to whether massage treatment is reasonable with reference to the five principles and the messages contained in the Clinical Framework, I provide the following comments.
Ongoing use of massage therapy does not fulfil Principle 1. The treatment in her case does not result in measurable benefit. It is clear that she enjoys massage, but the only measure of benefit is dependent on her reporting and that does not equate to “measurable benefit”.
Principle 2 relates to the use of a biopsychosocial approach. Her management did not result in her returning to a productive role in the workforce. She is fully active in retirement and is doing a range of physical and non-physical activities. Notwithstanding her enjoyment of massage, I think it is unlikely that cessation of massage will change her participation in her current activities.
With respect to Principle 3 (empower the injured person to manage their injury), it is appropriate for her to continue all of her activities. Passive massage on a long-term basis clearly does not meet Principle 3.
Principle 4 relates to optimising function, participation and return to work. The points made above are applicable to this principle. There is no likelihood of her returning to work and she is participating fully in retirement life.
Principle 5 related to basing treatment on the best available research evidence. The use of prolonged passive therapy is not in keeping with standard management recommendations. The fact that she has been allowed/encouraged to maintain inappropriate passive treatment for a long time does not provide a justification for continuing inappropriate management in the future. Ongoing massage therapy does not meet Principle 5.
Her functional prognosis is excellent.
I do not think any form of treatment is required. She should be encouraged to continue her active retirement.[37]
[37] Exhibit 11, Report of Associate Professor McGill, Consultant Rheumatologist, dated 27 April 2017, pp 6-7.
The Applicant’s evidence at the hearing, to my mind, demonstrated that she has developed a capacity to self-manage her symptoms. She gave evidence of going on a recent train trip to South Australia. On route, she says that she experienced certain familiar symptoms in her upper limbs. She was, of course, far from medical treatment but instead used her initiative to manage and control those symptoms and to otherwise complete this train trip without incident or any significant disruption attributable to those symptoms.
I therefore endorse the finding of Associate Professor McGill that ongoing provision of massage treatment to this Applicant is not reasonable with reference to the five principles and messages contained in the Clinical Framework.
The cost of massage therapy
I accept the Respondent’s contention that the cost of massage therapy already expended by the Commonwealth on this Applicant is clearly a relevant issue, having regard to the theme of the case law and the orientation of the Clinical Framework. This Applicant has received $53,910.74 in compensation for something in the order of 700 remedial massage treatments between August 2001 and March 2016.[38] It is clearly a substantial amount of money.
[38] Exhibit 8, Comcare Claim Invoice Line Item List.
The Applicant sought to deflect attention from the cost of the treatments she has received to date by suggesting any mention of such cost is somehow not a matter for consideration by this Tribunal. I reject that suggestion and consider that the cost of treatment she has received is a relevant issue, bearing in mind the case law and Clinical Framework. Simply, where there is convincing medical opinion that a particular treatment is of little benefit – as there is here in the form of Associate Professor McGill’s report – and the treatment is of no small cost, the lack of cost-effectiveness is a reason not to accept liability for the treatment.
I am of the view that the cost of the claimed massage treatment outweighs the therapeutic benefit derived from such treatment by the Applicant.
The logical consequential finding is that the correct or preferable decision is that massage therapy is not reasonable for the Applicant to obtain in the circumstances of this case.
I therefore answer the issues before the Tribunal as follows:
(a)Does the Applicant continue to suffer from epicondylitis (bilateral) which condition is said to constitute the “injury” pursuant to s 16 of the Act? Answer: No.
(b)To the extent to which the following questions need, if at all, to be addressed, my findings are these:
(i)Whether the claimed massage treatment constitutes “medical treatment” pursuant to the Act; Answer: No; and,
(ii)Is it reasonable for the Applicant to obtain such treatment on the basis that it remediates her symptoms “in relation to the injury” as is also required under the Act? Answer: No.
CONCLUSION
I therefore affirm the decision under review.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.....................[sgd]...................................................
Associate
Dated: 8 June 2018
Date of hearing: 27 April 2018 Applicant: In person Counsel for the Respondent: Ms Kate Slack Solicitors for the Respondent: Sparke Helmore
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