Topping and Comcare (Compensation)

Case [2015] AATA 525

Topping and Comcare (Compensation) [2015] AATA 525 (17 July 2015)

Division GENERAL DIVISION

File Number(s)

2014/2319

Re

Elaine Topping

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President Gary Humphries
Dr Bernard Hughson, Member
Date 17 July 2015
Place Canberra

The decision under review is affirmed.

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

Deputy President Gary Humphries

Catchwords

WORKERS’ COMPENSATION – whether massage and osteopathy constitute reasonable treatment for accepted condition of post-traumatic stress disorder - factors to be considered in determining this issue – decision affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16(1)

Cases

Alamos and Comcare [2014] AATA 629

Bashar v Comcare [2002] FCA 837

Bayani and Australian Postal Corporation [2015] AATA 342

Chowdhary and Comcare [1998] AATA 448

Comcare Australia v Rope (2004) 135 FCR 443

Comcare v Holt [2007] FCA 405

Durham and Comcare [2014] AATA 753

Jorgensen and Commonwealth (1990) 23 ALD 321

Luttrell and Military Rehabilitation and Compensation Commission [2012] AATA 692

Popovic and Comcare (2000) 64 ALD 171

REASONS FOR DECISION

Deputy President Gary Humphries
Dr Bernard Hughson, Member

17 July 2015

  1. This is an application to review Comcare’s decision under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) to refuse payments to Ms Elaine Topping for massage and osteopathy for an accepted injury of post-traumatic stress disorder (PTSD). For reasons given below we affirm the decision under review pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975.

    Background

  2. The applicant, Ms Elaine Topping, trained as a nurse and midwife. She worked in remote and indigenous communities, and in mining communities, in Queensland, Western Australia and the Northern Territory during the early part of her career. In 2004 she commenced working for Medicare in the area of indigenous health, and then in 2005 moved to the Department of Health and Ageing where she undertook similar work. In 2009 an unpleasant relationship developed with her supervisor, involving allegations of bullying, culminating in a confrontation in a lift between the supervisor and Ms Topping on 21 July 2009. Soon afterwards she went off work, and a claim for workers’ compensation was made in August of 2009.

  3. Her initial consultations about her condition were with her GP, Dr Fedoroff. She began seeing Linda Bruce, a psychologist, in late 2009.

  4. In December 2009 Comcare determined that liability was accepted under s 14 of the Act for a condition of adjustment reaction with anxious mood, later upgraded to PTSD. Ms Topping first saw a masseuse for her condition in 2009. She was assessed/treated by several doctors/psychiatrists in the period 2009-2014, although she remained under the psychological supervision of Ms Bruce throughout this period.

  5. In 2010 Ms Topping and her family moved to Queensland on the basis, she claimed, that remaining in Canberra was aggravating her psychiatric condition. The sequence was that her husband found work in North Queensland. He moved there, and initially Ms Topping remained in Canberra with her teenage children. Subsequently the family moved north and finally relocated…

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Details
AGLC
Topping and Comcare (Compensation) [2015] AATA 525
Case
[2015] AATA 525
Decision Date

CaseChat Overview and Summary

In the case of Topping and Comcare (Compensation), the primary dispute was whether massage and osteopathy constituted reasonable treatment for the claimant’s post-traumatic stress disorder (PTSD) under the workers’ compensation scheme. Ms Topping argued that these treatments were reasonable and necessary for her condition, while Comcare contended that they were not recognised psychiatric interventions and thus not reasonable treatments.

The key legal issues before the Tribunal were whether, under section 16 of the relevant Act, massage and osteopathy constituted medical treatment obtained in relation to Ms Topping’s injury and whether these treatments were reasonable. The Tribunal needed to consider various medical reports and the context of Ms Topping’s injury to resolve these issues.

The Tribunal examined the medical evidence and concluded that while Ms Topping suffered from a psychiatric disorder contributing significantly to her employment, the treatments in question were not recognised psychiatric interventions. Despite the treatments' potential benefits in managing symptoms, the Tribunal found they were not reasonable treatments under the Act. The Tribunal affirmed the decision that Comcare was not liable for the costs of the massage and osteopathy treatments.

The final orders were that the decision under review was affirmed, and Comcare was not liable to cover the costs of massage and osteopathy treatments for Ms Topping’s PTSD.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It was common ground before the Tribunal that Ms Topping suffers from a psychiatric disorder to which her employment has contributed to a significant degree. This constitutes an injury under s 14. For the purposes of determining Comcare’s liability under the Act for her massage and osteopathy costs in relation to this injury, it falls to the Tribunal to decide:(a)whether, under s 16, massage and osteopathy are medical treatment obtained in relation to her injury; and(b)whether, under s 16, massage and osteopathy are reasonable treatments obtained in relation to her injury.The medical evidence In her report dated 27 January 2012, Dr Fedoroff, Ms Topping’s GP, confirmed a diagnosis of severe PTSD and noted that she had been receiving the following assistive treatment:Massage has been very helpful for the severe neck and back pain – caused by the extreme stress condition. Chiropractor was also very helpful to relieve her neck and back… As you know severe psychological conditions i.e. depression and anxiety express themselves as physical pain – this is a documented fact. Ms Topping’s treating practitioners, Dr Fedoroff and Ms Bruce, confirmed in separate reports in 2012 that she was unfit for work and that that situation was likely to continue. Dr Klug, a consultant psychiatrist, stated in a report of 2 May 2012 that in his opinion Ms Topping was suffering from adjustment disorder with anxiety, but was likely to make a full recovery and be able to commence a graduated return to work. Following her move to Queensland, Ms Topping consulted a psychiatrist, Dr Stanganelli. This doctor provided a report to her GP which confirmed that Ms Topping felt ‘extremely anxious all the day’ and suffered from panic attacks. Dr Stanganelli noted a history of three years of chronic adjustment disorders with anxiety features and PTSD, and confirmed the diagnosis of severe generalised anxiety disorder. Ms Topping’s treating GP in Queensland, Dr Nixon, in a report dated 18 June 2013, confirmed that she continued to suffer from PTSD and that she was being treated with a mental health care plan for cognitive behavioural therapy together with muscular massage or therapeutic massage to assist her to relax and sleep. Dr Nixon recommended psychological assistance once a week, massage twice a week and chiropractic treatment as required. In a report dated 4 October 2013, Prof Robertson described Ms Topping’s condition as follows:Mrs Topping has an exceptionally poor prognosis. She presents with a complex mix of anxiety, existential despair and ongoing situational crisis which portends poorly for any form of recovery. He also suggested that she had some capacity for a return to work. Though he commented in this report that he believed Ms Topping was in receipt of appropriate care, when answering the question from Comcare as to the appropriateness of massage or chiropractic treatment for her he responded, in a supplementary report dated 9 January 2014:In essence, remedial massage and chiropractic treatment are not recognized [sic] psychiatric interventions.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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