Vinokurov and Comcare (Compensation)

[2019] AATA 4360

Vinokurov and Comcare (Compensation) [2019] AATA 4360 (25 October 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )  No: 2018/2477
GENERAL DIVISION  )

Re: Alexander Vinokurov
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:               Senior Member A Poljak

DATE OF        
CORRIGENDUM:      14 November 2019

PLACE:                     Sydney

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application is to be altered such that:

1. the reference to “a neck condition, “left sided intercostal fibrositis and capsulitis”, suffered on 9 November 1987” in paragraph two of the decision is replaced with “both “injury to neck” sustained on 26 August 1987 and “left sided intercostal fibrositis and capsulitis” sustained on 9 November 1987”.

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

Senior Member A Poljak

Division:GENERAL DIVISION

File Number(s):      2018/2477

Re:Alexander Vinokurov

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:25 October 2019

Place:Sydney

The decision under review is set aside and in substitution, The Tribunal decides that massage treatment is medical treatment that is reasonable for the applicant to obtain in the circumstances and Comcare is liable to pay compensation under section 16 of the Act in relation to the applicant’s claim for twice-weekly massage treatment as set out in the Medical Treatment Plan dated 3 October 2017.

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

Senior Member A Poljak

Catchwords

COMPENSATION – workers compensation – neck injury – claim for medical treatment – left sided intercostal fibrositis and capsulitis – chronic pain – whether massage treatment for the applicant is reasonable medical treatment – other medical treatment options exhausted – decision under review set aside and substituted

LEGISLATION

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

SECONDARY MATERIALS

Clinical Framework for the Delivery of Health Services, June 2012

REASONS FOR DECISION

Senior Member A Poljak

25 October 2019

1. Mr Alexander Vinokurov, the applicant, was born and educated in Ukraine, then part of the Union of Soviet Socialist Republics (“USSR”). He studied violin at music schools and colleges in the Ukraine, before attending the State Conservatory of Uzbekistan and eventually becoming a professional violinist. In 1979 the applicant migrated permanently to Australia and in 1980 the applicant obtained a position as a First Violinist with the Sydney Symphony Orchestra (“SSO”). On the evening of 25 August 1987, the applicant was involved in a car accident while driving from Goulburn to Sydney after a concert with the SSO. As a result of the collision the applicant injured his neck and shoulder.

2. The applicant has an accepted claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for a neck condition, “left sided intercostal fibrositis and capsulitis”, suffered on 9 November 1987 (“the injury”).

3. The applicant has not worked since 1999 and ceased employment with the SSO in 2003. It is understood that he is not undertaken any subsequent employment.

4. The applicant has claimed compensation for physiotherapy treatment under section 16 of the Act for the injury. He has been compensated for approximately 973 massage treatments, 79 physiotherapy services, 150 Alexander Technique sessions and other medical treatments by medical practitioners.

5. On 22 March 2018, a delegate of Comcare determined that, from 3 March 2018, there was no present liability to pay compensation to the applicant for massage treatments under section 16 of the Act. The delegate considered that short-term gains derived from long-term passive therapies such as massage treatment could not be justified as reasonable on an ongoing basis in the long-term.

6. On 3 May 2018, a delegate of Comcare affirmed the delegate’s decision of 22 March 2018. The delegate found that the medical evidence did not support a finding that ongoing massage treatment was reasonable medical treatment for the applicant’s neck injury and that indefinite massage treatment for maintenance was considered inconsistent with the principles of the Clinical Framework for the Delivery of Health Services (“the Clinical Framework”). This is the decision under review in these proceedings.

   ISSUES FOR DETERMINATION

7. The issues which arise in this application are as follows:

   (a)whether massage treatment is medical treatment that is reasonable for the applicant to obtain in the circumstances; and if so,

   (b)Whether Comcare is liable to pay compensation under section 16 of the Act in relation to the applicant’s claim for twice-weekly massage treatment as set out in a Medical Treatment Plan dated 3 October 2017.

   RELEVANT LEGISLATIVE PROVISIONS

8. Comcare’s liability for medical treatment is considered under subsection 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), which provides:

   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.

9. Subsection 4(1) of the Act, in part, 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.

10. “Therapeutic treatment”, “includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury”; subsection 4(1).

11. In making these assessments, it is often of great assistance to the Tribunal to make reference to the Clinical Framework. The Clinical Framework lists the guiding principles as:

    1.    Measure and demonstrate the effectiveness of treatment

    2.    Adopt a biopsychosocial approach

    3.    Empower the injured person to manage their injury

    4.    Implement goals focused on optimising function, participation and return to work

    5.    Base treatments on the best available research evidence.

12. Particularly relevant in considerations such as this is principle 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.

    RELEVANT MEDICAL EVIDENCE

13. On 3 October 2017, Dr Natasha Hyde, a general practitioner, recommended in a Medical Review Certificate that in regards to the injury, the applicant required massage treatment twice a week for the “relief of spasm/pain”.

14. A report of Ming Wei Ma, acupuncture and massage therapist, dated 30 November 2017, stated that the applicant had been receiving treatment in the clinic since 7 July 2011. Ms Ma reported:

    “It appears that [the applicant’s] neck, spine and shoulder problems are permanent and the only option for [the applicant] is continuous maintenance. He has constant headaches and pain in his shoulder, neck and spine. In my opinion that his headaches are direct result of his neck problem. Over the years, since the MVA, [the applicant] tried various treatments like physiotherapy, chiropractic, acupuncture etc.; by far he has felt massage was working for him the best of all.

    I have been treating [the applicant] using the relaxation techniques during his massage therapy sessions to relax and reduce stiffness in his neck, spine and back areas. This method directly produces relief from pain reduces level of anxiety and depression.

    … [The applicant] reports significant relief from pain for a few days after each treatment, so, in order to sustain better quality of life with as little as possible discomfort and pain, twice weekly massage treatment is highly recommended.”

15. Similarly, in a report dated 30 November 2017, Dr Hyde stated:

    “It appears [the applicant’s] neck, spine and shoulder injuries are permanent and he needs ongoing maintenance treatment to relieve the pain and improved range of movements. It appears current methods therapy provide sufficient relief from pain and reduces level of anxiety and depression.”

16. In a further report dated 15 February 2018, Dr Hyde stated:

    “The history of the treatments of [the applicant’s] injuries includes the use of painkillers and anti-inflammatory medications, physiotherapy, Alexander Technique, acupuncture, all with little or no effect. Introduction of massage therapy brought significant relief with positive psychological and physical outcome. Although [the applicant] is still significantly restricted in movements of his neck, spine and left arm, there is no obvious aggravation of movement restrictions since the 2002 assessment by HAS. This can only be attributed to continuous massage treatment. The pain is down to 2-3 on a scale 1 to 10, with mild flare ups on occasions which are successfully neutralised by massage. Due to the nature of injuries, it is not expected of [the applicant] to be completely free from pain and to have significant reduction in restriction of movements, but, with appropriate treatment, achieve the least amount and lowest level of pain and discomfort. The massage treatments definitely serve this purpose.”

    Dr Hyde recommended, in conclusion, for the applicant to “continue massage therapy treatment indefinitely at least 2 times per week”.

17. On 13 August 2018, the applicant was interviewed and examined by Associate Professor Neil McGill, consultant rheumatologist. In a report of the same date, A/Prof McGill stated in summary:

    “…the use of massage treatment over many years is inappropriate. The specific recommendations provided by Dr Michael Nicholas, director of the ADAPT program, in December 1999 that [the applicant] should avoid “passive treatment modalities which have no evidence of lasting effectiveness and risk reinforcing passivity in the patient (e.g.: massage, heat treatments, prolonged rest…”) was an appropriate warning but unfortunately, was not heeded.

    I do not doubt [the applicant] believes that he is better for having regular massage treatment. He also believes that he is being successfully managed prostate cancer and for tachycardia by way of using bicarbonate of soda. His belief system with respect to the management of his musculoskeletal symptoms is not in keeping with standard therapy… And is not consistent with the principles in the Clinical Framework for the Delivery of Health Services. Although he reports that he feels better as a result of massage, there is no measurable benefit which has derived, massage is not an active therapy, it does not promote self-management and in his case, has not been limited in duration.

    I do not think that he will obtain benefit from further massage and thus I do not think there is any reasonable “frequency and duration of massage treatments” that could be recommended for him at this stage.

    I do not think he would benefit from further investigation or assessment.”

18. In a report dated 17 September 2018, Dr Conrad Robert Winer, a rehabilitation physician, advised that based on the applicant’s history and his profile, he was an individual who benefited most from massage treatment. In regards to prognosis, Dr Winer detailed two significant factors which have caused the persisting symptoms in the applicant. Firstly, due to the abnormal posture of the neck and shoulders repeatedly sustained by orchestra violinists during each rehearsal and each performance, the applicant’s cervical spine was already coping with abnormal mechanical stresses prior to the motor vehicle accident. As a result, the accident caused more damage to the applicant’s weakened spinal tissues in his neck than would be the case in an average person. Secondly, the applicant has an abnormal extension deformity at the C2-4 region acquired as a result of his occupation. He stated:

    “During the early 2000s years he improved considerably since the mid/late 1990s, due largely to his self-help methods which he learned through the Alexander Technique and the Pain Management Program. There has been further temporary improvement for a few days after each session of massage from 2002 onwards.

    He has been at the level of maximum recovery during the past few years.

    Due to the factors in 1 and 2 above [as detailed above], there can be no further improvement.

    His condition is stable so long as he continues with the above.

19. In regards to future recommended treatment, Dr Winer advises that it would be most rare for him to recommend massage or other manual therapy weekly for even several months, let alone for several years. However, he states that this case is an exception, having regard to the applicant’s wide range of past treatments and self-help measures. Notably, the applicant gained benefit from the Alexander Technique from 1997 and the Pain Management Program from 1999/2000, both of which are dependent upon self-help measures. Dr Winer opines in his report that “it is essential that these self-help measures and the massage be continued. The question in relation to all of these approaches is one of frequency”. As such, his recommendation for the continuation of massage treatment in this case is coupled with conditions, namely:

    ·A complete understanding by the applicant of the concept of “Central Sensitisation” and that ongoing frequent regular massages can result in a psychological dependence upon receiving such treatment;

    ·Acknowledgement and understanding of the above by the massage therapist;

    ·The need for the massage therapist at most of her sessions with [the applicant] to enquire into, and encourage him in his current exercises and activities, and from time to time to encourage and broaden this physical, social and entertainment activities;

    ·Regular attempts by the patient and the therapist to decrease the frequency from twice a week to once a week, and then after a while to once a fortnight if possible, and so on. (In this particular case it may not be possible to progress beyond once a fortnight or even once weekly);

    ·After five months of the above, I recommend a one-day review of the patient by the team at the Royal North Shore Hospital (RNSH) Pain Management Program…;

    ·Preferably this review at five months should also include the Senior Consultant in Rehabilitation Medicine at RNSH;

    ·Also preferably, this and subsequent reviews should include direct liaison with the massage therapist…;

    ·Thereafter, continuation of massage sessions less frequently than currently, together with annual reviews by a Consultant in Rehabilitation Medicine, together with the massage therapist…and ideally together with a Consultant in Pain Management…

20. Dr Robert Balzer, general practitioner, said in his report dated 11 October 2018, that the applicant embarked on regular massage therapy from mid/late 2002 and always expressed very clearly that the regular massage treatments gave him the most relief from his neck pains. Dr Balzer concurred with Dr Winer’s conclusions. He also stated:

    “[The applicant] is a mature and sensible man, who was always struck me as being very sincere with his feedback. It is his feedback regarding his level of pain control when he does receive regular neck massage that makes me feel very strongly that is an essential part of his management plan - no other treatment modality has helped his pain more.

    …

    … It has become very apparent that regular massage is a key part of this ability to be sufficiently empowered and to maintain his day to day function. To remove his access to what has been demonstrated conclusively to be a key part of his management would be at the peril of his physical and psychological health.”

21. In a further report of A/Prof McGill dated 10 December 2018, he reiterated that the applicant’s use of massage therapy had not resulted in any measurable benefits other than the applicant’s reported desire to continue with the treatment and that a “recommendation to continue passive message therapy many years after it was commenced is against the current published expert recommendations based on careful review of the literature”.

22. At hearing, Dr Winer reiterated that the applicant was the “exception to the rule” in regards to the ongoing provision of massage treatment and advised that this was based on the symptoms experienced by the applicant, such as extreme episodes of pain and his pathology. He said that he considered the applicant to have a higher pain threshold based on his very little use of pain medication; the fact that he does not drink alcohol; and the applicant’s strong personality traits. Dr Winer also advised that in this particular case the applicant has already had all the treatments he would normally recommend. He confirmed that he “certainly does not anticipate” that the applicant will be able to reduce his massage treatment to less than once a fortnight or indeed once a week as the applicant’s condition was “far from average”. Dr Winer stated that he would expect, based on the applicant’s pathology that he would continue to suffer from ongoing pain. He said that the applicant needs some form of ongoing treatment and that if it was not massage treatment, he would indeed need analgesia.

23. A/Professor McGill advised at hearing that his expected treatment regime for the applicant at this point would be that the applicant remains “generally fit”; does not focus on areas where symptoms are; and uses analgesia as needed. He said he would not recommend anything else. A/Prof McGill said that a gradual stop of the massage treatment with a fixed end point after 6 months would be reasonable as ongoing open-ended massage treatment was not supported by the Clinical Framework. However, he said there was no actual physical requirement to reduce the massage treatment gradually.

    LAY EVIDENCE

24. In a statement dated 22 October 2018, the applicant outlines relevant aspects of his work and medical history in relation to the injury. In regards to treatment, the applicant states that surgery was not recommended by any specialists that he saw and he had no improvement from physiotherapy or various treatments such as “chiropractor, acupuncture, and glucosamine supplements”. The applicant stated that no medication helped other than steroid medication which reduced his level of pain, although not completely. He stated that the Pain Management Program at the RNSH helped him to understand and learn the management of pain physically and psychologically. The applicant advised that the Alexander Technique helped to reduce his level of pain and to some extent helped him to manage it. On advice of an Alexander Technique practitioner, the applicant commenced massage treatment. He stated:

    “With massage treatment my pain started to decline in my well-being gradually improved to some degree.

    It is only massage which I have found helps to almost immediately alleviate pain when it flares up and it brings tremendous relief for some time.

    With the twice a week treatments the pain goes away or stays low unbearable, I am almost pain free, and after no treatment for a week or two the pain would either suddenly grow or suddenly struck really hard. The intensity and location of pain varies from one episode to another. Sometimes the pain is in the middle of the neck, sometimes it radiates to my head giving me a bad headache, and sometimes it radiates down the spine, left arm and left shoulder.”

1. At hearing, the applicant described that the Alexander Technique lessons involved posture techniques, stretching positions and exercises to do at home. He said that he still currently implements the techniques learned and does the exercises. The applicant stated that the Pain Management Program specifically told him not to take pain medication because it didn’t help with the ongoing management of chronic pain. As a result he seldom takes painkillers. In regards to the massage treatment, the applicant advised that he felt better with massage because it reduces pain levels and helps him to live a normal life. He stated that during periods of time when he did not have massage treatment he felt worse and the pain built up to a point when he could not function normally. His only option was to resort to painkillers however he stated that it did not help with his pain levels. The applicant said that he always had pain however the regularity of massage treatment allowed him to cope with it better and that he was able to undertake everyday activities such as shopping, looking after his grandson, helping his son with things, engaging socially, and was able to go to concerts and sit for extended periods of time. If he did not have regular massage treatment, the applicant claimed that he could not do anything, could not socialise and could not think properly because of his headaches. Since the decision under review came into effect and payments ceased for massage treatment, the applicant advised that he continued to have massage treatment and paid for it out of his own pocket despite the financial burden it placed on himself and his wife. 

2. The applicant’s wife provided a written statement dated 22 October 2018 in these proceedings and gave evidence orally at hearing. In regards to the massage treatment, she stated that since the applicant commenced treatment, his complaints of pain became less frequent and his flare-ups appeared to be less frequent and severe. She said that the massage appeared to help relieve his pain in that he could sleep, he could lie down, he could babysit, he was more interested in things and he was more inclined to go out. She stated that with other treatments she didn’t see any improvement. In her written statement she advised that when the applicant had gone without such treatment for four weeks, he complained of tremendous pain and was moody and irritable. She states the applicant was forgetful, absent-minded, had no interest in anything and did not appear to sleep well. She advised that going back to massage treatment always appeared to reduce his pain and she noticed a marked improvement in his mood, energy and overall well-being.

3. The applicant’s son also provided evidence orally at hearing and has provided a written statement in these proceedings dated 5 March 2019. He described how he had vivid memories of his father over many years in the 1990s and very early 2000s appearing to have excruciating pain and being extremely uncomfortable. He described the massage treatment as transformative in that his father was able to live a normal life. He had witnessed the applicant without massage treatment and he could see the difference. He expressed his surprise at how beneficial the massage treatment appeared to be for the applicant.

   CONSIDERATION

4. The respondent contends that, from 3 March 2018 and currently, twice-weekly massage treatment is not reasonable medical treatment for the applicant to obtain in the circumstances. The basis for this contention is that in the applicant’s current circumstances, the massage treatment does not conform to the principles in the Clinical Framework as the treatments are extremely costly, unlimited in duration, ineffective and passive.

5. While I accept that massage is a passive treatment and that regular twice-weekly massage treatments over an extended period of time may be costly, I am convinced that the applicant’s circumstances are unique. The applicant has an abnormal extension deformity at the C2-4 region of his cervical spine acquired as a result of his occupation as a professional violinist over many years and as such the applicant suffered more damage to his already weakened spinal tissues in his neck as a result of the accident than would be the case in an average person. He has willingly undertaken all other recommended forms of treatment over many years. He has played an active role in his treatment and currently still adopts the techniques and completes the exercises he learned through the RNSH Pain Management Program and Alexander Technique. As recommended to him in the past through the Pain Management Program, the applicant has avoided the excessive use of analgesia for his chronic pain.

6. Despite A/Prof McGill’s suggestion that the applicant’s beliefs relevant to his health do not equate with the evidence of genuine benefit, particularly his past use of sodium bicarbonate for his prostate cancer, I found the applicant to be an honest and sensible man. I have no doubt that he would cooperate and try any treatment or recommendations made by medical professionals; which he has done in the past. His account of the effectiveness and benefits of regular massage treatment for his pain is corroborated by his wife, son, treating general practitioners and massage therapist. By all accounts, regular massage treatment enables the applicant to function normally on a daily basis. Given the applicant’s age, the goal of treatment is not for the applicant to return to work, but to optimise his function and empower him to manage his injury. Having careful regard to the available evidence, I accept that regular massage treatment significantly improves the applicant’s function and is the only treatment option available to the applicant which provides such a benefit. While Dr Winer’s opinion is prefaced by conditions, his ultimate recommendation is for the applicant to continue with twice-weekly massage treatment; with regular attempts to reduce the frequency over time. Dr Winer opined that it may not be possible to progress beyond once a fortnight or even once weekly massage treatment.   

7. The applicant continues to suffer from pain and will continue to do so in the future. A/Prof McGill opined that the applicant could stop massage treatment, use analgesia as needed and remain “generally fit”. I do not accept that this is a reasonable option for the applicant. As Dr Hyde outlined in her report dated 15 February 2018, the applicant’s treatment has previously included the use of pain killers and anti-inflammatory medications with little or no effect.  

8. I accept the evidence of Dr Winer, Ms Ma, Dr Hyde and Dr Balzer over that of A/Prof McGill.  Dr Winer is a rehabilitation specialist and his opinions are supported by the evidence of Ms Ma, Dr Hyde and Dr Balzer. Dr Balzer and Ms Ma have been actively involved in the applicant’s treatment over many years.  

9. For the above reasons, I am satisfied that massage treatment is medical treatment that is reasonable for the applicant to obtain in the circumstances. I note that in the future there may be a question surrounding frequency of massage treatment and the possibility of implementing a program to reduce the frequency of treatment over an extended period of time as recommended by Dr Winer. However, for the purposes of these proceedings, I am only dealing with the Medical Treatment Plan dated 3 October 2017. In the current circumstances I am satisfied the Comcare is liable to pay compensation under section 16 of the Act in relation to that treatment plan.

   DECISION

10. The decision under review is set aside and in substitution I find that massage treatment is medical treatment that is reasonable for the applicant to obtain in the circumstances and Comcare is liable to pay compensation under section 16 of the Act in relation to the applicant’s claim for twice-weekly massage treatment as set out in the Medical Treatment Plan dated 3 October 2017.

I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 25 October 2019

Date(s) of hearing:	27 and 28 March 2019
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	Forners Lawyers and Consultants
Solicitors for the Respondent:	Moray & Agnew Solicitors