Thoreau and Comcare (Compensation) - [2018] AATA 1517

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thoreau and Comcare (Compensation)

Details

AGLC: Thoreau and Comcare (Compensation) [2018] AATA 1517
Case: [2018] AATA 1517
Decision Date: 8 June 2018

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Thoreau, for compensation from Comcare for ongoing medical treatment. The Applicant had previously been accepted as suffering from bilateral epicondylitis, for which she had received approximately 700 remedial massage sessions. The dispute centred on whether the Applicant continued to suffer from this accepted condition and whether further massage treatment constituted "medical treatment" that was reasonable for her to receive under section 16 of the *Safety Rehabilitation and Compensation Act 1988* (Cth). The decision was made by Theodore Tavoularis SM.

The court was required to determine three key issues: first, whether the Applicant continued to suffer from bilateral epicondylitis as an "injury" for the purposes of section 16 of the Act; second, whether the ongoing massage treatment qualified as "medical treatment" under the Act; and third, whether it was reasonable for the Applicant to obtain such treatment in remediation of her symptoms in relation to the injury.

In reaching its decision, the court considered the principles of cost-benefit analysis in determining the reasonableness of ongoing treatment, referencing cases such as *Comcare v Holt* and *Comcare v Rope*. The court also had regard to medical evidence, specifically the report of Associate Professor McGill, who assessed the Applicant's condition against the five principles of the Clinical Framework. Associate Professor McGill concluded that ongoing massage treatment did not result in measurable benefit, did not align with a biopsychosocial approach or empower the injured person to manage their injury, did not optimise function or participation, and was not based on the best available research evidence. Based on this evidence, the court found that the Applicant did not continue to suffer from her accepted condition, that the massage treatment was not medical treatment for her accepted condition, and that it was not reasonable for her to continue receiving such treatment.

Consequently, the court affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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