Victor Caplikas and Comcare - [2015] AATA 170

[2015] AATA 170

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/1792

Re

Victor Caplikas

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey
Dr Isles, Member

Date 25 March 2015

Place Sydney
The Tribunal affirms the decision under review.
............................................
Senior Member J F Toohey
CATCHWORDS – compensation – knee injury – liability accepted – stem cell assisted arthroscopy – whether proposed surgery was reasonable medical treatment – evidence of promising results – decision under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16(1)
Cases
Comcare v Rope (2004) 80 ALD 99
Re Jorgensen and Commonwealth (1991) 23 ALD 321
Re King and Comcare (1998) 53 ALD 791
Re Kentish and Telstra Corporation Limited [1999] AATA 661
Stroud and Comcare [2002] AATA 350
Doan and Australian Postal Corporation [2014] AATA 66
REASONS FOR DECISION
Senior Member J F Toohey
Dr Isles, Member
Background

In August 2000, Mr Victor Caplikas injured his left knee at work. The respondent accepted liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) to compensate him for “strain of medial collateral ligament of knee (left)”.
In December 2010, Mr Caplikas injured his right knee while at work. The respondent accepted liability to compensate him for a “tear of medial cartilage or meniscus of knee (right)”.
Mr Caplikas has undergone a range of treatment for both knees over the years, with varying success. He is 49 years old and wants to avoid knee replacements for as long as possible. His treating orthopaedic surgeon, Dr Samiul Sorrenti, recommends he undergo bilateral knee stem cell assisted arthroscopy.
Where an employee suffers an injury, Comcare is liable to compensate him or her in respect of the cost of medical treatment obtained in relation to the injury where it is treatment that is reasonable for the employee to obtain in the circumstances: s 16(1).
It is not in dispute that bilateral knee stem cell assisted arthroscopy is medical treatment within the meaning of s 4 of the Act. The only question that arises in these proceedings is whether the treatment recommended by Dr Sorrenti is treatment that is reasonable for Mr Caplikas to obtain in the circumstances.
What is reasonable treatment?
The Act offers no guidance as to the meaning of reasonable medical treatment other than that it must be reasonable in the circumstances.
For Mr Caplikas it is submitted that the Act, being beneficial legislation, should be construed liberally in favour of employees. There is no argument with that principle but the Act still requires the Tribunal to determine what is reasonable medical treatment in the circumstances of the case.
In Comcare v Rope (2004) 80 ALD 99, the Federal Court observed that there is “a surprising dearth of judicial authority” on the interpretation of s 16(1). Justice Stone noted that the question of reasonability is “often subsumed in consideration of whether the treatment in issue is “medical treatment””, and the numerous Tribunal decisions on point turned so much on…

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 Victor Caplikas and Comcare

Details

AGLC: Victor Caplikas and Comcare [2015] AATA 170
Case: [2015] AATA 170
Decision Date: 25 March 2015

CaseChat Overview and Summary

Victor Caplikas brought a case against Comcare regarding compensation for a knee injury. The dispute centred on whether a proposed stem cell assisted arthroscopy procedure was reasonable medical treatment for his condition. The Federal Circuit Court was tasked with deciding the matter.

The central issue was whether the proposed treatment, which involved stem cell assisted arthroscopy, was reasonable medical treatment for Mr Caplikas’ knee condition. This required an evaluation of the available medical evidence, the novelty of the treatment, and its acceptance within the medical community. The court needed to determine if the evidence supported the effectiveness and safety of the proposed treatment, and whether it was a standard or accepted practice in the medical field.

The court examined the medical evidence provided by various specialists, including Dr Sorrenti, Dr Burrow, Dr McGill, and Dr Machart. While there were some promising results from stem cell therapy in small case reports, the court noted that the few high-value, peer-reviewed studies available did not specifically endorse the exact technique proposed by Dr Sorrenti. Additionally, the medical community, as represented by the Australian Rheumatology Association, did not support the use of stem cell therapies for osteoarthritis outside of research studies. The court found that there was insufficient evidence to deem the proposed treatment reasonable, particularly given the lack of support from a significant minority of the medical profession. Consequently, the court affirmed the decision under review, rejecting the proposed treatment as reasonable medical treatment for Mr Caplikas.

The final orders affirmed the decision under review, denying the proposed stem cell assisted arthroscopy as reasonable medical treatment for Mr Caplikas’ knee injury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Giving evidence, Dr Sorrenti said he had no idea of the cost of each treatment he administered. A letter dated 28 September 2012 from his practice to Comcare sets out a cost of $13,464.00 for arthroscopy, stem cell harvesting and injection, HiQCell procedure, anaesthetist’s fee and assistant surgeon. Other medical evidence Dr Burrow provided a written report to Comcare on 19 May 2013 in which he agreed with Dr Sorrenti that Mr Caplikas required no further Synvisc injections for his “continuing bilateral knee arthritis”. He stated:It is my opinion that arthroscopy is only helpful for mechanical catching type symptoms and then it is not always a guaranteed result. Arthroscopy however will do nothing for background knee pain. This seems to be the complaint of Mr Caplikas. Further, stem cell therapy, as tested in the Royal North Shore Hospital study, has been found to be no different from placebo arthroscopy. I do not recommend Mr Caplikas proceed to stem cell assisted arthroscopy. In the long term, his arthritis will become more and more severe and he will eventually require total knee replacements. Dr Neil McGill, rheumatologist, provided an opinion to Comcare based on documentation provided to him. He did not see Mr Caplikas. He has provided written reports and gave oral evidence. He undertook a detailed literature review including studies referred to on Mr Caplikas’ behalf. He stated there was sufficiently encouraging information from the animal models to make a controlled trial of this type of therapy in humans appropriate, but the proposed therapy had not been shown to be effective for knee injuries, and in particular, for osteoarthritis. Further, as the treatment is new, there remains the possibility that risks may be found in the future. Dr McGill gave evidence that available studies and other relevant information are reviewed at regular meetings between rheumatologists and orthopaedic surgeons and their current position does not support the use of stem cell therapies except as part of a research study. The Australian Rheumatology Association position statement on stem cell therapies as of 9 December 2014 with respect to osteoarthritis is that "at this point there is no high-quality evidence base to be confident of the safety and efficacy of this treatment". Dr Frank Machart, orthopaedic surgeon, saw Mr Caplikas for assessment in February 2014. He provided a written report and gave oral evidence. In his view, the proposed treatment is not uniformly accepted as effective or appropriate in the short or long term, and is subject to investigations and clinical research. He does not recommend it until it is sufficiently investigated. In the meantime “it is not part of evidence-based medicine”. He agreed that knee replacement is “radical” but said it is also effective. He would expect it to last about 20 years. He agreed that high-impact activities such as jogging and bicycle riding are not recommended after knee replacement. On behalf of Mr Caplikas, we were provided with an extract from the Regeneus HiQCell website which lists under “Find a Medical Practitioner” four orthopaedic surgeons in NSW and one in Victoria, and four sports physicians in NSW and two in Victoria. Dr Machart gave evidence that there are currently three to four hundred orthopaedic surgeons in NSW. It is reasonable to conclude from this that the procedure is practised by very few in the medical profession.Is the proposed treatment reasonable in the circumstances?

Decision

Reasons for decision

Extracts from several other studies were referred to on Mr Caplikas’ behalf. All reported improvements in subjects treated with a range of stem cell treatments. However, most were small case reports with no control groups. Conclusion In Kentish, Stroud and Doan (above) the Tribunal accepted that the particular treatment was reasonable despite it being new or somewhat experimental. We would distinguish those decisions because in each case the applicant had undergone some treatment, with positive results. That is not to say that a person must undergo treatment before it can be considered reasonable but there may be insufficient evidence otherwise of the value of the treatment to make it reasonable in the circumstances. While there is evidence of encouraging results in stem cell therapy for osteoarthritis of the knees, the few high value, peer reviewed studies that are available do not report on quite the same technique as proposed by Dr Sorrenti, and their authors did not recommend adoption of the treatment but rather support further study. Nor is there evidence of support by a significant minority of the medical profession for the proposed treatment. We are not satisfied, on the information before us, that the proposed bilateral knee stem cell assisted arthroscopy is treatment that is reasonable in the circumstances for Mr Caplikas to obtain. We affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/1792
Re	Victor Caplikas
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member J F Toohey Dr Isles, Member
Date	25 March 2015
Place	Sydney