VVXN and COMCARE
[2010] AATA 186
•19 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 186
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4839-40
GENERAL ADMINISTRATIVE DIVISION ) Re VVXN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member K Bean
Dr E Eriksen (Member)Date19 March 2010
PlaceAdelaide
Decision The Tribunal affirms that part of the reviewable decision which determined that the respondent is not liable to pay compensation to the applicant pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 in relation to “EFA treatment” (fish oil capsules).
..............................................
K BEAN
(Senior Member)
CATCHWORDS
COMPENSATION – Whether fish oil capsules constitute reasonable treatment for accepted conditions of lumbar disc disorder and chronic pain syndrome – evidence does not establish that treatment of benefit for either condition – relevant part of decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321
REASONS FOR DECISION
19 March 2010 Senior Member K Bean
Dr E Eriksen (Member)
1. The applicant is employed by the Defence Science and Technology Organisation (DSTO) and has been employed by the DSTO for many years. On 10 April 2003 he injured his back at work when he fell off a chair. He lodged a claim for worker’s compensation on 22 May 2003 and on 3 July 2003 the respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) to pay compensation for “lumbar sprain”.
2. A number of determinations have subsequently been made in relation to the applicant’s claim. Most relevantly, in a reconsideration decision of 7 September 2009 the respondent determined that it had no present liability to pay compensation to the applicant under either ss 16 or 19 of the SRC Act in relation to his accepted condition of “lumbar sprain injury”. In that reconsideration decision, the respondent also affirmed a determination dated 20 March 2009 which disallowed the applicant’s claim for “EFA treatment” (being fish oil capsules).
3. On 9 October 2009 the applicant applied to this Tribunal for review of the respondent’s reconsideration decision of 7 September 2009, giving rise to this application. On 30 April 2009 he had also applied for review of a decision of the respondent dated 4 March 2009, giving rise to application 2009/1850, which was listed for hearing together with this application.
4. By the time the matters came on for hearing, most of the issues the subject of the two applications had been resolved by agreement, and decisions were subsequently made by the Tribunal pursuant to s 42C of the Administrative Appeals Tribunal Act 1975 (the AAT Act) reflecting those agreements. Application 2009/1850 was entirely disposed of by the s 42C decision in that matter. In relation to this application, on 8 February 2010, the Tribunal made the following decision pursuant to s 42C(3) of the AAT Act:
“1. To the extent to which the reviewable decision of the respondent dated 7 September 2009 determined that as and from 6 October 2008 the respondent had no present liability under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in relation to the applicant’s accepted condition of ‘unspecified disc disorder, lumbar’, that decision is varied as follows:
1.1From 6 October 2008, the respondent has been liable to pay compensation to the applicant under both ss 16 and 19 of the SRC Act in relation to both of the applicant’s accepted conditions of ‘unspecified disc disorder, lumbar’ and ‘chronic pain syndrome’.
1.2The respondent remains presently liable to pay compensation to the applicant under both ss 16 and 19 of the SRC Act in relation to both of the applicant’s accepted conditions of ‘unspecified disc disorder lumbar’ and ‘chronic pain syndrome’.”
5. However, the question of the respondent’s liability to pay compensation to the applicant pursuant to s 16 of the SRC Act in relation to fish oil capsules has not been the subject of any agreement between the parties and remains to be determined by the Tribunal. It is accordingly that issue which is the subject of this decision.
6. Following a request by the applicant, on 15 March 2010 an order was made pursuant to s 35 of the AAT Act requiring that the applicant’s name be replaced by a pseudonym on all documentation. A similar order had previously been made in application 2009/1850.
background
7. As will be apparent from the above, there is no dispute that the applicant suffers from an ongoing back condition, together with a chronic pain syndrome. There is also no dispute that for some time now he has been taking fish oil capsules which he believes are of assistance to him by reason of their anti-inflammatory effect. He also believes that this treatment has psychological benefits for him. The applicant’s treating general practitioner, Dr Heinzle, supports his use of fish oil capsules and, indeed, has prescribed them to him. However, the respondent disputes the efficacy of this treatment and its liability to pay for the treatment.
issue
8. For the reasons set out above, the only issue currently before the Tribunal is whether the respondent is liable to pay compensation to the applicant pursuant to s 16 of the SRC Act in respect of fish oil capsules.
legislative framework
9. Section 16 of the SRC Act relevantly provides as follows:
“16(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.”
the evidence
10. For the reasons outlined above, most of the evidence before us was obtained in the context of a wider dispute, and neither party sought to call any oral evidence. Fortunately however, a number of the doctors who have provided reports in this matter have specifically addressed the “fish oil” issue.
11. The applicant relied upon a report from his general practitioner, Dr Heinzle, dated 12 March 2009 in which he stated as follows:
“This is a quick note to clarify for Comcare’s records that the fish oil capsules are being prescribed for their anti-inflammatory effect, as the previous medication, Celebrex, was not thought to be desirable for use long-term.
The St. John’s Wort is being used to aid sleep, in an effort to reduce the requirement for Stilnox (Zolpidem Tartrate).
As a bonus, the fish oil and St. John’s Wort have been shown to help prevent/treat depression.”[1]
[1] Exhibit 2, p 407
12. The applicant also referred the Tribunal to a particular page of a document entitled “A Guide to What Works for Depression” located on the Beyondblue website[2]. The page the applicant referred us to contained the statement:
“There have been numerous studies on omega-3 supplements as a treatment for depression. A pooling of data from 10 of these studies found that omega-3 did lead to a greater improvement than placebos (dummy pills). However, there was a lot of inconsistency in findings from study to study.”
[2] The authors are listed as Anthony Jorm, Nick Allen, Amy Morgan and Rosemary Purcell.
13. The respondent relied upon the reports of four different specialists, each of whom addressed in their reports the question of the likely efficacy of fish oil capsules in the applicant’s circumstances.
14. In a report dated 15 January 2010, Dr Peter Cotton, clinical and organisational psychologist, stated as follows:
“Based on my knowledge and experience in pain management, fish oils are not yet considered to be an evidence-based treatment for pain – and hence are not regarded as an accepted medical treatment. Rather, they are still considered to be an alternative therapy.”[3]
[3] Exhibit 1
15. In a report dated 11 January 2010, Dr David Gorman, consultant physician, pain management specialist and medical oncologist, stated as follows:
“At this stage after an injury there is usually not ongoing inflammation and I do not believe that his use of EFA (fish oils) is supported by any evidence. I therefore do not believe that it is reasonable to fund the use of fish oil as a treatment for any effects of the injury.
Of course, it is not unreasonable for him to take this medication which has no side effects or ongoing harm and which may benefit other aspects of his health such as his cardiovascular health.”[4]
[4] Exhibit 6
In a report dated 31 December 2009, Dr John Lloyd, consultant neuropsychiatrist, stated:
“With the history of multiple medications already having been administered I am doubtful that the administration of fish oils would offer additional value in the management of his pain disorder, and I am not aware of fish oils offering advantages over and above those claimed by the use of opioids.”[5]
[5] Exhibit 5
17. In a report dated 30 September 2009, Dr Peter Stevenson, consultant physician, stated:
“Fish oils have been used for a variety of conditions, predominantly cardiovascular and often with speculative evidence of benefit. I am aware of only one study which suggested they may have benefits in neck and back pain by the intermediary of an anti-inflammatory effect.
Mr [VVXN] is clearly long past any inflammatory stage of injury. Inflammation is not an explanation for chronic back pain; fish oils may benefit in the acute but certainly not the long-term phase of the illness.”[6]
[6] Exhibit 4
contentions of the parties
18. At the hearing before us, the applicant pointed to the fact that fish oil capsules had been prescribed for him by his general practitioner. He also submitted that if he was denied compensation in relation to fish oils, this would antagonise him, thus worsening his psychological state.
19. Counsel for the respondent, Mr Cole, submitted that the specialist opinions available to the Tribunal were all to the effect that fish oil capsules were unlikely to be of any benefit to the applicant in treating his accepted conditions.
20. Mr Cole also relied upon the decision of the Federal Court in Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321 for the proposition that the question of whether particular medical treatment is reasonable in all the circumstances must be approached objectively rather than subjectively. In that matter, Gray J observed as follows (at 325):
“In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from the particular injury. The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation.”
consideration
21. Having regard to the decision cited immediately above, we accept Mr Cole’s submission that the question for us is whether, in the circumstances, it is objectively reasonable for the applicant to take fish oil capsules by way of treatment for either of his compensable conditions. Consistently with the remarks of Gray J cited above, we also consider that in determining whether that treatment is objectively reasonable, we must have regard to the efficacy of the treatment or, in other words, the extent to which the applicant is likely to derive any benefit from it.
22. On the evidence before us, we are not satisfied that the applicant derives any benefit from taking fish oil capsules, in relation to either of his accepted conditions. We note there is a letter before us from Dr Heinzle in which he states that he has prescribed fish oil capsules for their anti-inflammatory effect and also states that “fish oil and St. John’s Wort have been shown to help prevent/treat depression”. However, we accept the evidence of the specialists referred to above that the applicant’s back condition has passed the stage where he is likely to be suffering from significant inflammation, or is likely to benefit from anti-inflammatory treatment.
23. In relation to depression, there is no evidence before us to the effect that the applicant has been diagnosed with that condition and this is not a condition for which liability has been established pursuant to s 14 of the SRC Act. We also accept the evidence of the relevant specialists that fish oil capsules are unlikely to be of benefit to the applicant in relation to his chronic pain syndrome.
24. In relation to any possible preventative effect, it is clear from the terms of s 16 that it provides for compensation to be paid only in respect of “the cost of medical treatment obtained in relation to the injury” (i.e. the injury for which liability has been accepted). It does not allow for compensation to be paid in respect of treatment aimed at preventing the development of other conditions.
25. As to any benefit associated with the applicant not feeling antagonised by a denial of liability to pay for this treatment, we are not satisfied that this is something we can properly take into account in determining whether it is objectively reasonable for the applicant to obtain the treatment.
conclusion
26. Accordingly, we are not satisfied that fish oil capsules constitute treatment which it is reasonable for the applicant to obtain in relation to either of his accepted conditions.
decision
27. The Tribunal affirms that part of the reviewable decision which determined that the respondent is not liable to pay compensation to the applicant pursuant to s 16 of the SRC Act in relation to “EFA treatment” (fish oil capsules).
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: .............J Coulthard.........................................
AssociateDate of Hearing 20 January 2010
Date of Decision 19 March 2010
Advocate for the Applicant Self-represented
Advocate for the Respondent Mr S Cole
Solicitor for the Respondent Sparke Helmore
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