Tzioumis and Comcare (Compensation)

[2016] AATA 154

Tzioumis and Comcare (Compensation) [2016] AATA 154 (16 March 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1651
Re	Anastasios Tzioumis
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	16 March 2016
Place	Sydney

The decision under review is affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

WORKERS COMPENSATION – injury during work related flight – Bikram yoga classes – meaning of ‘medical treatment’ – whether the treatment was conducted by, or under the supervision of a physiotherapist, osteopath, masseur or chiropractor – treatment may be characterised as therapeutic but was not conducted by or under the supervision of a specified health practitioner in the circumstances – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 4 and 16

CASES

Comcare v Watson [1997] FCA 149; (1997) 46 ALD 481

Bashar v Comcare Australia [2002] FCA 837
Rope and Comcare [2013] AATA 280

Matthews and Telstra Corporation Limited [2014] AATA 251

REASONS FOR DECISION

Ms N Isenberg, Senior Member

16 March 2016

BACKGROUND

1. The Applicant, Dr Anastasios Tzioumis, has an accepted claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for ‘displacement of cervical intervertebral disc (left)’ (accepted injury).

2. The Applicant, who is employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) as a research scientist in the astronomy and space sciences section, sustained the accepted injury on 13 February 2011 while sleeping in an awkward position on a flight from Sydney to Geneva for work. 

3. The Applicant required minimal time off work following the accepted injury and underwent physiotherapy, Feldenkrais therapy and a structured gym rehabilitation program.  In about November 2012 he commenced attending Bikram yoga, which he continues to attend about 3-4 times a week. 

4. The applicant sought payment for the Bikram yoga but Comcare determined it was not liable to pay compensation for the claimed treatment under s.16 of the SRC Act. By reviewable decision dated 12 February 2015 that determination was affirmed. The applicant, who was unrepresented, seeks review by this Tribunal.

   Relevant legislation

5. For reasons which are discussed below, the claim arises under s16(1) of the SRC Act:

   (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.

6. Medical treatment is defined in section 4 of the SRC Act 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

   …

7. Therapeutic treatment is defined in section 4 of the SRC Act as ‘includes…treatment given for the purpose of alleviating an injury.’

   Issues

8. In accordance with s 16 of the SRC Act, the issues which arise in this matter are whether the claimed treatment was:

   (a) medical treatment as defined in s 4 of the SRC Act;
   (b)    obtained in relation to the accepted injury; and
   (c)    reasonable for the Applicant to obtain in the circumstances.

   Applicant’s submission

9. Firstly, the Applicant disputed that the matter related to a claim for “medical treatment”, because what he is seeking is payment for a preventative measure, that is, to avoid medical treatment.

10. By way of background, the Applicant said that, following the accepted injury, he had minimal time off work – working half time for approximately 10 weeks after which he returned to full time work.  He continued with occasional physiotherapy and in mid-2012 started a gym program supervised by a physiotherapist.  He continued in that program at his workplace, at no cost to Comcare.  He then looked for more physically challenging activities and regarded it as somewhat fortuitous that he discovered, on his brother-in-law’s recommendation, Bikram yoga.  He said he discussed doing Bikram yoga with his GP Dr Mann, who, he said, was happy for him to participate, although she did not really know what it was.  He commenced in about November 2012.

11. He noted that Bikram yoga is an extremely challenging form of yoga, with sessions of 90 minutes in a studio heated to about 40-degrees.  Because of the heat requirement, it must be done at a studio and cannot be done at home.  In his evidence he explained that the heat and humidity make the muscles relax and the 26 fixed poses exercise his whole body increasing flexibility and strength.  As a result of the vigorous exercise he is a lot fitter and has lost weight.  When he is unable to attend Bikram yoga he may need Feldenkrais treatment if he develops acute pain.  However, he did not press a claim in relation to Feldenkrais. 

12. He found that Bikram yoga was not only improving his fitness levels but also, “to his surprise” had significant beneficial effects for managing stiffness and weakness due to his neck injury.  These improvements have continued and any extended absence from Bikram yoga sessions leads to aggravation of his neck and shoulder/arm problems.

13. He submitted that Bikram yoga has become essential to maintaining good health and avoiding recurrence of his problems due to the neck injury; it “fits in” with his lifestyle, he said in his evidence.  Before the injury he had occasionally participated in other yoga lessons for over 20 years but, unlike Bikram yoga, these never became “essential” to his wellbeing. 

14. He said that in discussion with Dr Mann and, over a period of more than a year, she assessed the improvements to his “injury issues” and supported his continued use of Bikram to manage his injuries, because his condition was not going to improve.  He said the aim was to be able to manage his condition himself.  The effectiveness of Bikram yoga, he submitted, is amply demonstrated by his having discontinued all other treatments, namely by GP and physiotherapists.

15. He submitted that he has 2 choices for ongoing management of his injury:

    ·Proactive: Continue to manage his health issues via regular Bikram yoga sessions as he has been doing for more than a year, at a cost of about $100 per month.

    ·Reactive: Discontinue Bikram yoga and manage any resultant injury-related health issues via visits to GP and consequent treatment from physiotherapists.  This will be very disruptive to his life and work, and he believed it ultimately would be more expensive.

16. He submitted that Comcare’s approach to fund only the reactive management of his condition, namely doctors, physiotherapists etc, would cause him pain and distress, time off work and would potentially cost Comcare more.

Medical evidence

1. On 2 March 2011 Dr Mann, the Applicant’s then treating general practitioner diagnosed cervical radiculopathy and noted that the Applicant continued to have hand, thumb, middle and index finger numbness with shooting pains in the forearm and some numbness.  For his neck, at that time, he was largely relying on a neck brace as necessary and hot packs. 

2. To manage weakness on his left shoulder/arm/neck and residual tingling in his left fingers, the Applicant consulted Dr Shivalingam, a neurologist in March 2011.  In her report to Dr Mann, Dr Shivalingam wrote, on 18 March 2011, that the Applicant’s pain involved his neck, upper left shoulder, his arm in a C6 distribution, as well as his pectoralis muscle.  Dr Shivalingam was happy for the Applicant to return to yoga.  She acknowledged that he liked to keep fit but counselled against freestyle swimming because of the required neck movements. 

3. On 30 June 2011 Dr Mann certified the Applicant fit for pre-injury duties and recorded in her clinical notes that his “neck has largely got better”.

4. When the Applicant attended Dr Shivalingam again in March 2012, he reported no arm pain but experienced some tingling and muscular spasm in the left supraspinatus muscle and some residual numbness of his index and middle finger.  She found a slight weakness in his triceps.  Dr Shivalingam reported to Dr Mann on 19 March 2012 that she recommended ongoing physiotherapy with the aim of muscular strengthening.  She gave permission for him “to partake in all heavy activity”.  She did not need to see him again.

5. Dr Mann provided a brief letter to the Applicant dated 26 June 2013 in which she wrote:

   I advise you to use Vikram (sic) Yoga as a stretching process to maintain the flexibilikty (sic) of the injured left shoulder, for its medical value.

6. Dr Mann provided a report dated 12 September 2013.  She said that with analgesia and physical therapy, the Applicant had made considerable recovery over time, and was now stable and able to undertake his usual physical activities.  He had stable mild left hand dysaesthesia and left shoulder tightness.  Dr Mann said she considered the treatment he had received to date achieved maximal improvement and so no further curative treatment was needed.  In a further report dated 24 December 2013, written at the Applicant’s request in association with his present claim, Dr Mann wrote that she considered that the Applicant’s injury would require continued maintenance treatment for the foreseeable future.  The Applicant, however, has not consulted Dr Mann since 24 December 2013.

7. The Applicant relied on no other formal medical evidence.  He said he has not consulted other medical practitioners in relation to his neck condition.

8. On 28 July 2015 the Applicant told A/Prof McGill, rheumatologist, to whom he was referred by the Respondent, that he had not noted any change in his left hand sensory symptoms whether or not he is doing Bikram yoga and that the sensory change is, in any event, so minor that he is not generally aware of it unless specifically asked about it.  In the report of the same date, A/Prof McGill considered the injury the Applicant suffered, as a result of sleeping in an awkward position on the aeroplane, compression of a left cervical nerve root, likely the C6 nerve root.  A/Prof McGill stated that a combination of the narrowing of the space through which the nerve root leaves the spinal canal, which developed on a constitutional basis, and the awkward position of the Applicant’s neck on the flight, caused the nerve root to be compressed and led to radicular symptoms in the upper limb.

9. A/Prof McGill reported that the Applicant demonstrated overall very good neck movements—flexion, extension, lateral flexion in each direction and rotation to the right were all full.  There was “minor” restriction of rotation to the left (50% of normal), which caused left sided neck discomfort.  In his evidence however A/Prof McGill amended his evaluation of the Applicant’s neck rotation to “minor to moderate”.  The Applicant said in his evidence that he had been to Bikram yoga the night before the examination, which explained the good results.  A/Prof McGill recorded that degenerative cervical disease was confirmed on an MRI the Applicant brought with him to the examination.

10. A/Prof McGill expressed the opinion that the initial severe pain in the Applicant’s neck was likely a manifestation of radiculopathy, which had resolved, save for very minor, functionally insignificant, sensory disturbance at the tips of his left thumb, index and middle fingers.  A/Prof McGill considered the Applicant’s ongoing symptoms are due to the pre-existing degenerative changes in his cervical spine.

11. A/Prof McGill noted that the Applicant’s regular exercise and Bikram yoga was of general benefit to him.  He accepted that Bikram yoga makes the Applicant feel better, including less stiffness in the neck.  A/Prof McGill considered the benefit the Applicant obtains from treatment and his level of need is the same now as it would have been had the episode of radiculopathy not occurred.

12. A/Prof McGill concluded the Applicant’s prognosis is good and he does not require any further medical therapy for the previous episode of radiculopathy or his degenerative cervical spine disease.

13. A/Prof McGill provided another report dated 6 December 2015, after being briefed with photographs of the Bikram yoga poses.  He was of the view that Dr Shivalingam would have been “shocked” to learn that the Applicant was attempting some of the poses in circumstances where she had counselled against freestyle swimming.  He accepted though that the Applicant felt empowered because of his self-management.

14. In his evidence A/Prof McGill considered the Applicant’s neck condition – radiculopathy – had resolved except for minor tingling in the left fingers.  He was of the view that Bikram yoga provided no benefit to the Applicant’s condition.  Further, he thought there was a risk that Bikram yoga could in fact irritate the Applicant’s condition because of the extreme postures.  When he was asked in cross-examination about Dr Shivalingam approving “heavy activity” he observed that the doctor had had no opportunity to comment on the Applicant’s undertaking Bikram yoga.  He agreed that self-directed activities are good but was of the view that there are a range of activities available that do not put the neck at risk of further injury, as does Bikram yoga.  As to the Applicant’s confidence in Bikram yoga, he said that people can get focussed on a particular type of exercise.

    CONSIDERATION

15. Medical treatment is relevantly defined as therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or therapeutic treatment by, or under the supervision of, one of the specified types of health practitioners.  Therapeutic treatment is defined in section 4 of the SRC Act asincluding treatment given for the purpose of alleviating an injury.

    Was the Bikram yoga obtained at the direction of a legally qualified medical practitioner?

16. In Comcare v Watson[1997] FCA 149; (1997) 46 ALD 481(Watson) at 484 Finn J, when construing the phrase ‘at the direction of a medical practitioner’ in s 4(b), noted that the direction must be to obtain ‘therapeutic treatment’:

    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.

17. In Bashar v Comcare Australia[2002] FCA 837, Madgwick J, at [9] considered the notion of ‘therapeutic’ might be extended to:

    treatment for prophylactic or preventative purposes, that is to say, to prevent the pain, or other effects of an injury from becoming worse or from appearing.

18. There was no specific contention by the Applicant that he had attended Bikram yoga at the direction of a medical practitioner.  In March 2011 Dr Shivalingam, his neurologist, was happy for the Applicant to return to yoga.  From the evidence though, it is clear that the yoga to which Dr Shivalingam referred was, what the Applicant called in his evidence, “community” yoga, and not the very rigorous Bikram version.  When, in March 2012 she gave permission for him "to partake in all heavy activity", by that time, he not yet commenced Bikram yoga.  It cannot be said he undertook Bikram yoga at the direction of Dr Shivalingam. 

19. As to whether it might be said he had attended Bikram yoga at the direction of Dr Mann, the Applicant’s evidence was clear – he had commenced Bikram yoga on his own initiative.  In that regard, this matter is somewhat like Matthews and Telstra Corporation Limited [2014] AATA 251 where the applicant purchased a treadmill, which while beneficial to the ongoing management of his (amputation) condition, was made on his own initiative and not at the direction of a medical practitioner. Deputy President Bean came to this view, notwithstanding that the applicant’s doctor had advised him to undertake regular exercise.

20. In her December 2013 report Dr Mann considered that the Applicant’s injury would require continued maintenance treatment for the foreseeable future.  She did not specify to what type of treatment she referred.  The Applicant, however, has not consulted Dr Mann since 24 December 2013.  While Dr Mann may have encouraged him to continue Bikram yoga in her somewhat inelegant and brief letter to the Applicant dated 26 June 2013 she did so on the basis that he undertake Bikram yoga’s stretching to maintain the flexibility of his left shoulder.  However, his accepted injury was ‘displacement of cervical intervertebral disc (left)’, and not his left shoulder.  It cannot be said he undertook Bikram yoga at the direction of Dr Mann for the purpose of alleviating the injury, which according to Dr Mann had, in any event, by 30 June 2011, “largely got better”. 

21. Consequently, Bikram yoga cannot be considered to be obtained at the direction of a legally qualified medical practitioner, and is not medical treatment for the purposes of s 4(b) of the SRC Act.

    Was the Bikram yoga by, or under the supervision of, one of the specified types of health practitioners?

22. I was referred to Rope and Comcare [2013] AATA 280 where Member Webb, after reviewing the cases referred to above, and others, said at [31]- [33]:

    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…  

    It does not follow that any particular therapeutic treatment to be undertaken at the direction of a medical doctor in a course of medical treatment must be imbued with an intrinsic medical quality or feature. The meaning of ‘therapeutic treatment’ is not expressly confined to an activity that is intrinsically medical in nature, although in the usual run of cases therapeutic treatment may have a medical character; the essential requirement is that the treatment must be therapeutic. It is not difficult to conceive of many examples of therapeutic activities or devices that do not have any intrinsic medical quality, and that are not designed to alleviate an injury, that nonetheless may be applied for a medical or therapeutic purpose in the context of treating an injury. There is nothing intrinsically medical about a ball for example, but a ball may be put to a medical or therapeutic purpose when treating an injury, perhaps to improve muscle control or hand to eye coordination. If one considers the example of an exercise or gym program – the program may be one that involves activities commonly undertaken by people in pursuit of fitness, but the quality that renders it therapeutic is the extent to which the program is applied or undertaken for the purpose of treating a particular injury.

    Thus, when determining whether an activity is ‘therapeutic treatment', whether the activity has a medical character, or whether it is specifically designed for a therapeutic or other purpose, or it is of broad utility, is beside the point. The sharp focus of the inquiry is whether the activity is obtained, applied or undertaken for a therapeutic purpose in the context of a program designed for the treatment of an injury.  The important point is that ‘therapeutic treatment’ is for the purpose or object of treating an injury – the characteristics or qualities of the particular activity must be considered in the context of the purpose to which it is being put:

    ... its purpose or object must be the treatment of the particular injury in question. If such is not the actual, specified purpose of the activity then notwithstanding its beneficial effects, it will not relevantly be therapeutic treatment for present purposes. Second, because such treatment is purposive, an indicator that a doctor-prescribed activity is intended, relevantly, to be therapeutic will commonly be the adoption of some level of monitoring of it to gauge whether it is appropriately adapted to its purpose or is effective in some degree in realising that purpose (per Watson at 484).

1. Leaving aside the issue of whether Bikram yoga in fact comes within the definition of therapeutic treatment, section 4(d) does not require the treatment to be at the direction of a medical practitioner, but the treatment must be conducted by, or under the supervision of a physiotherapist, osteopath, masseur or chiropractor. The Applicant did not, on the evidence, proceed under the supervision of a physiotherapist, osteopath, masseur or chiropractor, nor was there evidence that the Applicant’s Bikram yoga instructors are themselves physiotherapists/osteopaths/masseurs/chiropractors in accordance with s4(d) of the SRC Act.

2. I was also referred by the Respondent to the publication the “Clinical Framework for the Delivery of Health Services” (the Clinical Framework) which outlines a set of five guiding principles for the delivery of allied health services to injured workers:

   (a)treatment should be measureable and result in demonstrable effectiveness:

   (b)a biopsychological approach should be adopted in relation to treatment;

   (c)treatment should aim to empower the injured person to manage their injury;

   (d)treatment should aim to implement goals focused on optimising function, participation and return to work; and

   (e)treatment should be based on the best available research evidence.

3. While Bikram yoga may, in the Applicant’s case, have met some of the guiding principles, it clearly cannot be said to meet all.  For example, there was no evidence that outcomes are measurable; nor, on A/Prof McGill’s evidence is it demonstrably effective; nor was there evidence that it is based on the best available research evidence.  However, in view of my findings above, it was not necessary to consider the Clinical Framework further.  

   Conclusion

4. The Applicant considered Bikram yoga was maintenance treatment for his accepted injury. The Applicant’s position was clear – either he has to do regular Bikram yoga exercises to maintain health and prevent recurrence of problems, or wait until he has problems and then seek treatment. He considered it to be manifestly unjust that he must wait until he needs treatment before he can seek support from Comcare. I have some sympathy for the Applicant’s position. Subjectively, he finds Bikram yoga beneficial to his overall well-being and believes it had significant beneficial effects for managing stiffness and weakness due to his neck injury. This view, however, was not supported by the available medical evidence. Unfortunately, the law requires activities which might be considered as therapeutic, to be undertaken by, or under the supervision of specified health practitioners. The door is not closed to treatments which, very broadly, might be described as ‘alternative’; it’s just that they are available in the limited circumstances set out in the SRC Act.

   DECISION

5. The decision under review is affirmed.

I certify that the preceding 43 (forty -three) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

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

Dated 16 March 2016

Date of hearing	4 February 2016
Applicant	In person
Counsel for the Respondent	Mr B Kelly
Solicitors for the Respondent	Sparke Helmore