Wayne Cupitt and Military Rehabilitation and Compensation Commission
[2012] AATA 696
•10 October 2012
[2012] AATA 696
Division VETERANS' APPEALS DIVISION File Number
2011/4957
Re
Wayne Cupitt
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate 10 October 2012 Place Perth The decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable to pay compensation, in accordance with s 16 of the Safety, Rehabilitation and Compensation Act1988 (Cth), to the applicant in respect of an injury, namely, “aggravation of a pre-existing condition of mild lower lumbar disc lesion” (“the injury”), sustained on 8 July 1970, as follows:
·for the period from 25 January 2011 to 6 February 2012 – compensation in respect of the cost of the therapeutic treatment comprising Pilates exercises under the supervision of a registered physiotherapist and lumbar joint mobilisation and “myofascial techniques” by a registered physiotherapist (which the applicant was obtaining in relation to the injury as at 25 January 2011) on a weekly basis;
·for the period from 7 February 2012 to date – compensation in respect of the cost of the therapeutic treatment comprising Pilates exercises under the supervision of a registered physiotherapist (which the applicant was obtaining in relation to the injury as at 25 January 2011) on a weekly basis;
·for the period from 7 February 2012 to date – compensation in respect of the cost of the therapeutic treatment comprising lumbar joint mobilisation and “myofascial techniques” by a registered physiotherapist (which the applicant was obtaining in relation to the injury as at 25 January 2011) on a monthly basis, with 3-monthly reviews.
..............[sgd]............................................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – member of Defence Force – applicant served in Royal Australian Air Force (RAAF) – applicant suffered back injury in July 1970 arising out of or in course of RAAF service – compensation payable to applicant in respect of back injury – respondent paid compensation to applicant for cost of physiotherapy treatment on weekly basis – respondent determined that compensation be paid to applicant for cost of physiotherapy treatment on monthly basis from 25 January 2011 - reasonable medical treatment – compensation continues to be payable to applicant for cost of Pilates exercises on weekly basis – compensation payable to applicant for cost of passive physiotherapy treatment on monthly basis from 7 February 2012 – decision under review set aside
LEGISLATION
Commonwealth Employees' Compensation Act 1930 (Cth)
Compensation (Commonwealth Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 16(1) and s 124
CASES
Comcare v Holt (2007) 94 ALD 576
Comcare Australia v Rope (2004) 135 FCR 443
Re Jorgensen and Commonwealth (1990) 23 ALD 321REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member10 October 2012
Introduction
Wayne Cupitt (“the applicant”), who was born in July 1944, suffered a lower back injury on 8 July 1970 arising out of or in the course of his employment with the Royal Australian Air Force. He claimed compensation under the Commonwealth Employees’ Compensation Act 1930 (Cth) and, on 21 January 1972, a delegate of the Commissioner for Employees’ Compensation made a determination under the Compensation (Commonwealth Employees) Act 1971 (Cth) that the Commonwealth was liable to pay compensation to the applicant in respect of an injury described as “aggravation of a pre-existing condition of mild lower lumbar disc lesion”, sustained on 8 July 1970 (“the injury”).
Subsequently, compensation was paid to the applicant for the cost of medical treatment for the injury, including hydrotherapy treatment and physiotherapy treatment.
In the period 2004–2010 determinations were made by delegates of the Military Rehabilitation and Compensation Commission (“the respondent”) approving payment of the cost of one physiotherapy treatment session per week and two hydrotherapy treatment sessions per week.
On 25 January 2011 a delegate of the respondent made a determination approving payment of the cost of one physiotherapy treatment session per month “for the next twelve months”.
On 22 September 2011, following a request by the applicant for a reconsideration of the determination of 25 January 2011, another delegate of the respondent made a “reviewable decision” under s 62 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (“SRC Act”) affirming that determination.
The applicant has applied to the Tribunal for review of the reviewable decision of 22 September 2011.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–151, pp 1–259) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1–A4 tendered by the applicant;
·Exhibits R1–R4 tendered by the respondent; and
·the oral evidence of the applicant and of Dr Michael Bowles.
The Applicant’s Evidence
The applicant tendered in evidence a statement prepared by him setting out the benefits to him of physiotherapy and hydrotherapy treatment (Exhibit A1), and he confirmed that the contents of that statement are true and correct. That statement is as follows:
“ 6. Benefits of Treatment to the Applicant
6.1The applicant contends that he has received physical, mental, family, and social benefit from his physiotherapy and hydrotherapy treatment. The applicant particularly wishes to draw attention to his reduced pain level, which has effectively given him back a life which is not ruled by negative feelings and emotions but has enabled him to regain a positive outlook and derive pleasure from the normal activities that others take for granted. These benefits are discussed in detail below.
6.2 Physical Benefits
6.2.1The applicant is a tall, well-built man who, prior to his injury was involved in many sporting activities. He played at the A grade level Australian Rules Football, squash, badminton, tennis, table tennis, volley ball, ten pin bowling and swimming. He represented the RAAF at inter-service competitions in several of these sports. Following his injury in 1970 he was no longer able to play high-impact sports or contact sports and was restricted to racquet sports, table tennis, golf and swimming. By 1980 the only physical activity he was able to undertake was hydrotherapy in the form of swimming in a heated pool. For a man who placed great stock in his physical prowess and fitness this was a very difficult transition, and obviously had a major impact on his view of himself as a physical being. By the early 2000s the applicant’s pain levels had increased to the point where he could no longer work or engage in any physical recreational pursuits. He could no longer run, jump, squat, stand, walk, climb or descend stairs, bend over, or drive machinery without pain or inducing a muscle spasm in his back. It was painful for him to cough or sneeze, stand at, or sit on the toilet, or pass a bowel motion, or sit on a normal chair. His sciatic pain levels were between 5 and 10, on a scale of ten, all the time, and he relied heavily on analgesics, anti-spasmodics and anti-inflammatories. He was unable to engage in any sexual activity.
6.2.2In 2002, at his wife’s insistence he sought medical help, and he was able to resume his hydrotherapy exercises in the newly opened heated pool at the Geraldton Aquarena. In 2004 his LMO referred him to a physiotherapist, who commenced back mobilisation and a Pilates exercise program. The applicant’s home exercise program, which he had continued to do since 1970, was reviewed and modified. The results from the physiotherapy treatments were very pronounced. There was a marked drop in the applicant’s pain levels and an increase in mobility. The physiotherapist and the LMO both agreed that the treatment was so beneficial that it should continue.
6.2.3From the applicant’s point of view the reduction in his pain levels as a result of this treatment program has given him back a life, albeit a restricted one. He is now able to sit long enough to go to a restaurant occasionally, can play bridge using a special chair, can sleep and only wake up 2 or 3 times, instead of the 8-10 times before the treatment, and can engage in restricted hobby activities. His pain levels which used to be between 5-10 are now usually in the range of 3-4. This is a level the applicant can tolerate without the need to take pain control medications. The applicant has found that if he misses his weekly treatment his pain levels and stiffness increase and he has to rely more on pain control medications. Home exercises alone are helpful, but do not provide the same pain relief and mobility benefits as he derives from his mobilisation and myofacial (sic) techniques treatment, the Pilates reformer exercises, and hydrotherapy, nor do they provide any aerobic fitness.
6.3Mental Benefits
6.3.1As the applicant’s pain and disability levels increased so did the effects on his mental health. He became very withdrawn and irritable. His inability to work, or contribute meaningfully to the business, led to feelings of loss of worth and a loss of interest in life. He became apathetic and had difficulty getting up in the mornings. His ability to concentrate decreased and he lost interest in reading and other mental activities. He spent most of his time watching TV and on the computer and internet.
6.3.2After undertaking his physiotherapy treatment program he has become much more mentally active. He now relishes mental challenges, although his depression medication inhibits his memory and his ability to quickly respond to such challenges, and he has resumed playing competitive duplicate contract bridge. He is now a voracious reader, indulges in all sorts of mental puzzles, including Sudoku, cryptic crosswords, code breakers and logic problems, and has resumed his hobby of electronics. Prior to his treatment he would have been incapable of responding to this AAT Appeal in any sort of coherent manner.
6.4Social Benefits
6.4.1The pain the applicant suffered from his back injury had resulted in his almost complete withdrawal from social activities. He had difficulty communicating, due to his mental and physical restrictions, and had lost all interest in the activities and opinions of others. He could not concentrate during conversations and had no empathy with the feelings or problems of others. He was self-absorbed with his own pain and preferred to stay home and watch TV.
6.4.2With the reduction of his pain levels and improved mobility, due to his physiotherapy treatment program, there has been a great improvement in his social awareness and interaction. Although he is still severely restricted in a physical sense by his back injury, he now initiates contact with people, is interested in discussing their problems, and offers advice. He is involved in teaching bridge to new players, and engages in light banter at appropriate times. People once again appreciate and enjoy his company.
6.5 Family Benefits
6.5.1At the low point of his physical and mental condition the applicant was given an ultimatum by his wife; he had to either seek treatment or contemplate a divorce. His family situation was not one that he had given a great deal of consideration to, and the shock of this ultimatum made him realise just how intolerable things had become for them. He subsequently contacted his LMO and she initiated the process of rehabilitation that he desperately needed.
6.5.2With the backing of his family and his LMO the applicant committed himself to getting back to the best physical and mental health possible. After the applicant and his wife had discussed the problem with Professor Kosky (Consulting Psychiatrist), who explained that there was no fault in the applicant but that the whole problem was due to chronic pain caused by the back injury, it became possible for the applicant to acknowledge the pain and accept it as a problem to be dealt with as a family. The adding of the physiotherapy program to his hydrotherapy and home exercises made a huge difference to his pain levels and mobility, and gave him and his family a much more positive outlook. This reduction in pain levels, and change of outlook, enabled the applicant to re-establish emotional contact with his family and gain their support to help him continue the rehabilitative process.”
In cross-examination the applicant gave the following evidence:
·he initially attended hydrotherapy sessions from 1979 to 1993 and has subsequently been attending them since 2002;
·each hydrotherapy session lasts at least one hour;
·his hydrotherapy program comprises three series of aerobic exercises devised by a physiotherapist, including exercises involving “working against water pressure” with various implements, rotational exercises, upper body strength exercises, and muscle stretching exercises;
·he previously attended two hydrotherapy sessions per week, but he is presently attending one hydrotherapy session per week;
·over the years his physiotherapy program (which he has been performing since 2004) gradually improved his “core musculature”, and he has found that one session of each of physiotherapy and hydrotherapy per week is now sufficient to maintain his physical condition;
·he has also been performing home exercises for 42 years;
·his home exercises take between half an hour and one hour and are mainly for “flexibility” rather than “core strength”;
·each physiotherapy session is of one hour’s duration comprising supervised Pilates for 45–50 minutes, and back mobilisation and “myofascial techniques” for the rest of the time;
·he performs Pilates using three machines, namely, a standard Pilates reformer, a machine for upper body exercises, and a platform, and the physiotherapist is present throughout.
The applicant also gave the following evidence:
·without weekly physiotherapy treatment, he would be “incapacitated”;
·if he goes much longer than a week without physiotherapy, his pain level increases to the point where he has to rely more on analgesics;
·he prefers physical treatment to drug treatment.
Additional Material Tendered by the Applicant
The applicant tendered in evidence a bundle of documents (Exhibit A2) which includes the following:
·a letter, dated 5 July 2011, from Dr John Pollard, the applicant’s (then) treating general practitioner, to Dr John O’Shea, Cardiologist, referring the applicant for assessment and management in relation to irregular heartbeats that “are now becoming more frequent and symptomatic, being produced by effort and stress”;
·a report, dated 2 September 2011, from Dr O’Shea to Dr Pollard which concludes as follows:
“ In summary, your patient has a background of risks for coronary artery disease and has ectopic beats which are exacerbated by exertion. He also has symptoms suspicious for angina but not absolutely classical. In these circumstances, I feel that the likelihood of underlying coronary artery disease is moderately high and he should have coronary angiography to check this out. …”;
·a letter, dated 15 June 2012, from Michael Woodburn, Physiotherapist, which states as follows:
“ I have been associated with Mr Wayne Cupitt’s physiotherapy and hydrotherapy treatment since 2004. In recent years I have treated him intermittently when Mia Royce has been unavailable.
During one such treatment Wayne suffered an apparent heart arrhythmia while doing his Pilates exercises. He became pallid, sweaty and nauseous and needed to lie down. Another client, who is a trained nurse and was present at the time, confirmed his pulse to be very erratic and suggested he go to hospital. Wayne advised me that this situation had occasionally arisen before when he physically exerts himself and that it usually stabilises after 10-15 minutes of rest. He requested that we wait for that time and if he did not improve to seek medical help. Fortunately his condition did stabilize, improving moderately with he (sic) still looking somewhat lethargic and his wife came and took him away.
I am aware from recent discussions with Mia Royce that this is an ongoing occasional occurrence. The history of these incidents would suggest that he would have some difficulty and risk engaging in any significant unsupervised program where he is required to exercise in prone, supine or sidelying.
I am aware that Mr Cupitt currently continues a hydrotherapy exercise program which I established several years ago. I periodically and coincidentally encounter him in the hydrotherapy pool at the Geraldton Aquarena when I attend for other reasons. I occasionally offer suggestions for slight changes to his program (free of charge and undocumented, negating his need for formal review).”.
The applicant also tendered in evidence the following documents:
·a Department of Veterans’ Affairs document which contains (inter alia) policy guidelines relating to the management of new and long-term approvals for massage therapy under the SRC Act (Exhibit A3);
·an extract from the respondent’s policy manual containing guidelines for physiotherapy treatment approvals made under the SRC Act (Exhibit A4).
It is unnecessary for the Tribunal to set out either of those documents in these reasons.
Recent Relevant Material in the T Documents
On 27 August 2010 Maria Theophanidou, a delegate of the respondent, sought the opinion of Rebecca Tweedy, Injury Management Adviser, Military Rehabilitation and Compensation Group, as to whether it was “reasonable” for the applicant to “continue to undertake physiotherapy on a weekly basis” (T137).
On 20 January 2011 Ms Tweedy wrote to Ms Theophanidou as follows:
“ Thank you for your request to seek my recommendation regarding Mr Wayne Cupitt’s physiotherapy management. I have summarised my involvement in his treatment approval.
28/10/10: I spoke to the treating physiotherapist, Mia Royce who seems to have a good grasp of the client’s overall condition. Mia has mentioned to the client before about looking to decrease the frequency of physio however she said that Wayne is very scared to do this as he thinks he will go downhill. Mia was not aware of any proposed surgery in fact she said that Wayne was against having any back surgery.
We have discussed possible options for ongoing management. Mia is seeing Wayne today and will discuss some possibilities with him. She has suggested cutting the physio to monthly and requesting a gym membership or even looking to decrease physio to fortnightly and seeing how Wayne goes.
3/11/10: Wayne was very upset with MRCG treatment plan which he incorrectly interpreted as being ‘cut-off’. Physiotherapy sessions continued as weekly until a review in 4 weeks.
6/12/10: Physiotherapist was away and unable to be contacted however she left a message to say that Wayne had not changed and that weekly sessions should continue.
20/1/11: I spoke to Wayne’s treating physio today. She stated that the strategies that she has used to try to decrease Wayne’s reliance on ongoing weekly physio, had not been successful. Wayne’s functional outcome measure scores had remained static. She said that Wayne was very scared that by decreasing the frequency of physio, he would deteriorate. At present he is having a 3-week break from physio as she is on holidays and doesn’t have anyone covering her physio practice.
I feel that Wayne will have weekly physio whether it be under MRCG or VEA. It is up to MRCG then to make the decision about whether he should be allowed the increased travel reimbursement under MRCG.
I hope that this assists you with your decision.” (T139)
A letter from Mia Royce, Physiotherapist, dated 16 May 2011, states as follows:
“ Over the past few months since Wayne’s injury management program with Military compensation has been under review there has been much correspondence between myself and Rebecca Tweedy.
The following serves as a summary of correspondence to date.
I outlined that on previous occasions when Wayne had not received weekly treatment, his subjective level of pain and stiffness increased. The only objective change was a restriction in lumbar flexion however there was no demonstrable change in Oswestry Questionnaire findings. This increase in stiffness and pain concerned Wayne. The prospect of not receiving weekly treatment worried Wayne but he has never said he was scared about not receiving treatment.
I outlined the fact Wayne receives treatment which includes joint mobilisation and myofascial techniques in addition to exercise rehabilitation in the gym for 1 hour per week. I suggested the exercise component of his treatment on a weekly basis should not change as research suggests this is one of the most effective forms of treatment for chronic pain. I suggested we could reduce the frequency of mobilisation and myofascial treatment but not the exercise based treatment to assess whether there was any deterioration as assessed by the Oswestry Questionnaire.
It is also very important Wayne continues his hydrotherapy program on a weekly basis.
…” (T146, p 249)
A letter, dated 12 July 2011, from Dr John Pollard, the applicant’s (then) treating general practitioner, to Ms Theophanidou states (inter alia) as follows:
“ …
Clinically, the patient has benefited in several ways from the programme arranged by Mia Royce. Principally this has resulted in maintenance of improved function and prevented deterioration. The clinical improvements and prevention of further deterioration of the condition has been reflected in a substantive reduction in drug usage by the Veteran to control his symptoms and maintain his quality of life. I have no hesitation in recommending that he continue the clinical programme in place before 25/01/11.
…” (T146, p 250)
Additional Material Tendered by the Respondent
The respondent tendered in evidence two letters from Mia Royce, Physiotherapist, one dated 16 May 2011 (Exhibit R3), the other dated 10 February 2012 (Exhibit R4). Ms Royce’s letter of 16 May 2011 is in the same terms as the letter of the same date set out in paragraph 15 above, except that the last sentence in the latter letter is omitted. Ms Royce’s letter of 10 February 2012, which is addressed to Dr Pollard, states as follows:
“ Wayne continues to attend for weekly physiotherapy and pilates maintenance sessions.
Wayne has been under considerable stress recently related to Military Compensation reducing his treatments to once per month. He continues to have one treatment per week with remaining sessions under DVA. His lumbar symptoms are currently maintained with his weekly pilates concentrating on balance and squatting, lumbar joint mobilisation and myofascial techniques and occasional cervical and shoulder mobilisation depending on Wayne’s symptoms.
There is limited improvement based on Oswestry Disability Questionnaire or Quebec Back Pain Disability Scale measured over a 3 month period. Wayne finds the Quebec scale easier to interpret. A summary of Wayne’s improvement over the past few years include improved sitting tolerance (now up to 2.5 hours at Bridge), less reliance on use of a walking stick except when at outings such as a clearing sale however walking is still limited to 200m distance limited by pain, less reliance on back brace, ability to walk up a flight of stairs however there is still difficulty descending stairs where Wayne leads with his right foot due to instability of the left knee. Wayne has reduced reliance on his medications predominantly using Panadol Osteo and he ceased Tramadol 2 years ago. Wayne now only wakes 2-3 times per night.
…
Wayne’s exercises program at pilates and hydrotherapy has always been focused on function. We are currently working on single leg balance and squatting with the view to improve walking and putting on his shoes. Wayne also continues his home program of stretching and strengthening.
…”
The Evidence of Dr Michael Bowles
Dr Bowles, Occupational Physician, confirmed that he had examined the applicant and prepared a report, dated 6 February 2012. He confirmed that the contents of that report are true and correct to the best of his knowledge.
Dr Bowles’ report, which is addressed to the respondent’s solicitors, states as follows:
“ Thank you for asking me to review Mr Wayne Cupitt, who I saw in the Geraldton rooms today for the purposes of providing an independent medical assessment and in particular opinions on ongoing physiotherapy treatment.
…
History of Presenting Complaint
Mr Cupitt confirmed he has had longstanding back problems with left leg complaint going back to 1970.
Mr Cupitt noted there was some dispute over who was going to pay for his treatment.
Mr Cupitt noted present treatment was once a week attending a physiotherapist. Mr Cupitt indicated that he had been at the physiotherapist for 5 or 6 years as around that time he had seen Dr Kosky who suggested that he had PTSD and depression and prescribed Prozac and suggested Mr Cupitt give up all work. He also apparently suggested physiotherapy.
Mr Cupitt said he would attend the physiotherapist and receive mobilization, which also included mobilization up the mid back and into the neck. There was no application of ultrasound or massage.
Mr Cupitt would also use Pilates reformer machine at the physiotherapy practice.
He felt the benefits were that he felt looser, had less back stiffness and the paraesthesias in his legs would reduce. He indicated over the next week his pain levels would increase to the point where he was prior to the treatment the week prior.
Mr Cupitt said since starting with the physiotherapist his pain levels had dropped. He indicated that his level of function had much improved.
His wife made comment that since that treatment he would now read, he had returned back to playing bridge, which he had ceased prior. She said he was also a changed person and would now speak to her without prompting. She indicated that Mr Cupitt’s sleeping was also better and that he would only awake 2 or 3 times a night and could return back to sleep rather than tossing and turning and difficulty getting back to sleep.
Other Current Treatment
Current treatment also included attendance at the heated pool at Geraldton Aquatic Centre.
Mr Cupitt would attend once a week where he had a range of exercises to perform including walking in several directions and using float balls.
Mr Cupitt said he has attended hydrotherapy for 40+ (sic) years as Mr Stokes had suggested he would need to undertake this for ever and a day.
Medication
Panadol Osteo- sometimes nil, sometimes 3 times a day
Valium – as required – on average 3 times a week
Current Complaints
Mr Cupitt noted he had constant low back ache of variable intensity ranging from 4/10 – 10/10. Ache was always present, some days worse than others.
Aggravating factors included sitting, standing and driving for ½ hour to an hour. Mr Cupitt said he had a new car which he said was better to sit in. He said he couldn’t walk far citing a distance of 50m – 100m. He said he couldn’t run, squat or jump. He said his sex life was affected.
Mr Cupitt said the back was stiff in the morning and he would do some exercises to loosen up. Mr Cupitt said he also had some home exercises to undertake.
Mr Cupitt was noting spasms in the back from time to time. He said he hadn’t had a spasm for approximately 12 months. He said when they occurred the back would stiffen up and he had difficulty moving and any movement would lead to spasm. He said he could feel them coming on and generally would take a Valium and lie down.
Mr Cupitt felt his back was getting worse.
Mr Cupitt noted an ache in the left calf which was present all the time with twinging when walking. He said he had a sharper pain at the back of the left knee though this too would ache most of the time.
He indicated that he had a feeling like he ‘had a sock on’ noting altered sensation in the lateral left calf over the big toe and under the foot.
There were no other musculoskeletal complaints apart from some neck stiffness which Mr Cupitt said was getting worse including discomfort into both trapezii and down the right arm. He indicated difficulty looking from side to side.
General Medical History
Mr Cupitt is 67 years of age. He noted some other unrelated medical issues.
Mr Cupitt said he would walk on the farm but couldn’t manage more than 50-100m. He said he would go to his shed where he had some high chairs and would undertake his hobby of electronics. Other leisure activities included reading and watching TV.
Mr Cupitt lives on a farm that produces marron and runs beef cattle.
Mr Cupitt noted no involvement in physical activity on the farm.
Mr Cupitt said he was mainly independent in self-care though had difficulty getting shoes on and had moved to slip-on shoes. He said he couldn’t cut his toe nails. He said he would lie on his back to put his socks on.
Examination
On examination, Mr Cupitt presented as a pleasant man. He was restless whilst sitting. Otherwise, he showed no sign of restriction or impairment to informal examination.
Back complaints were noted in the low lumbar region. There was reduced movement in all directions in the lumbar region.
Straight leg raising was 10° on the left and 30° on the right. There was light touch sensory loss approximating the L5 distribution. Reflexes were equal and symmetrical. Mr Cupitt was able to stand on his heels and his toes.
There was no evidence of non-organic features.
Investigations
I viewed the CT scan and MR scan and concur with the reports.
Diagnosis and Opinion
Mr Cupitt has ongoing mechanical back pain with referred left leg symptoms.
It is likely that aging processes account for his current mechanical back pain in my opinion.
A number of studies have looked at treatment for mechanical back pain.
I concur with the physiotherapist in regards to general exercise and activity that has been shown to be of benefit to people with chronic back pain.
Other treatments are largely non-proven. Manipulation has been shown to provide short-term symptomatic relief. Similar benefits appear to come from acupuncture and massage.
However, for chronic back pain little else has been shown to provide any benefit.
The next issue is maintenance of function.
I would note both Mr Cupitt and his wife are attributing the commencement of physiotherapy leading to significant improvements.
However, this also coincided with psychological treatment and a number of the improvements Mr Cupitt described are quite likely to be confounded by the psychological and psychiatric treatment leading to improvement in mental well-being.
Therefore on an evidence-based approach, one would be supportive of self-directed hydrotherapy programme.
I would be supportive of any gym or exercise activity that Mr Cupitt is motivated to undertake. This could include Pilates, light gym as examples. These could be undertaken in a self-directed fashion. Once a week is, in my opinion, not frequent enough.
In relation to passive treatment such as massage, ultrasound and mobilization, these provide nothing but short-term symptomatic relief at best. They could be viewed as maintenance treatment. Other authorities would suggest that ongoing passive treatments lead to a reliance on passive treatment. That issue for Mr Cupitt is somewhat negated by his attendance at hydrotherapy for a number of decades and recent attendance at either the gym or current Pilates reformer programme.
Ultimately, ongoing passive treatments will not alter any underlying disease process nor lead to any longer term benefit.
There is no question that a number of people do seek solace in a similar fashion either at the physiotherapist or regular chiropractic treatment or similar allied health practitioners for maintenance treatment.
Ultimately, the decision lies with the funding authority and their treatment guidelines in relation to maintenance treatment.
Specific Questions
1.The history as given to you by Mr Cupitt including current symptoms and complaints.
Detailed above.
2.The benefits as described by Mr Cupitt that physiotherapy treatment provides for his service-related ‘aggravation of a pre-existing condition of mild lower lumbar disc lesion’ (injury).
Discussed above. Current physiotherapy treatment has been attributed to lead to improvement in function over the last 6 years and more so maintenance of function in between visits.
I note the accepted injury of aggravation of pre-existing condition of mild lower lumbar disc lesion.
I would also make the point that this disc lesion has progressed and there are also widespread degenerative disc lesions in the lumbar region.
It would be remiss to not raise the issue of normal aging process (for example the fact the back complaints are getting worse) and to attribute all current low back symptoms to a ‘mild lower lumbar disc lesion’ is not accurate in my opinion.
There is no question that an injury to a disc can pre-dispose that disc to degeneration. However, there is also widespread degenerative change as noted on the MRI scan. The neck is also developing stiffness which is also likely to be an aging process.
3.Your opinion as to what frequency of physiotherapy was reasonable treatment for Mr Cupitt’s injury from January 2011 to date. Please provide reasons for your opinion.
My opinion is that passive treatments are not reasonable treatment for this injury given its longstanding nature.
Frequency of passive physiotherapy in my opinion that is reasonable is 3 monthly reviews. Attendance to a pilates program (self managed apart from reviews) should be 2-3 times per week to get maximum benefits, then once a week could be adequate for maintance (sic) of those benefits.
Mr Cubitt (sic) has had sufficient and adequate treatment in the form of passive treatment in my opinion. He should be encouraged to self-manage through his current exercise programme and hydrotherapy.
Maintenance treatment is at best short-term symptomatic management and more likely than not providing little in the way of any benefit to maintaining or improving function.
4.Your opinion as to what frequency of physiotherapy is currently reasonably (sic) treatment for Mr Cupitt’s injury. Please provide reasons for your opinion.
In terms of passive physiotherapy, I do not see a need for passive physiotherapy treatment. On the basis of occasional back spasm, these spasms could be treated if they occur. As noted above some modalities do provide relief from acute symptoms. Otherwise, 3-monthly reviews for review of exercises and activity would be viewed as appropriate.
5.Your opinion as to a future physiotherapy programme for Mr Cupitt’s injury, including for what period of time and with what frequency. Please provide reasons for your opinion.
This is encompassed above. Mr Cupitt should be encouraging self-management. Hydrotherapy is to be encouraged. Exercise and activity is to be encouraged. Appropriate programme could be set up for Mr Cupitt with 3-monthly reviews and updates.
I would view this as best-evidenced medical practice.
…” (Exhibit R2)
In his oral evidence Dr Bowles confirmed that he is supportive of the continuation of a Pilates program in the applicant’s case, but “on a self-managed basis”. As regards the frequency of such a program, Dr Bowles opined that, because the applicant was continuing with an ongoing program and was not “starting up”, one session per week would be satisfactory in order to maintain the benefits gained from that program. Asked for his opinion regarding the comparative benefits of Pilates exercises and hydrotherapy in the applicant’s case, he said that his preference was for Pilates for the purpose of “working on core strength”.
As regards the applicant’s concern about performing Pilates exercises without supervision because of heart arrhythmia problems he has experienced when performing such exercises (see Dr O’Shea’s report of 2 September 2011 and Mr Woodburn’s letter of 15 June 2012 referred to in paragraph 11 above), Dr Bowles noted that Dr O’Shea had not expressed an opinion regarding particular exercises that the applicant should, or should not, be performing, and he suggested that the applicant should obtain an opinion from Dr O’Shea regarding the appropriateness of his exercising, including the level of exercises he may safely perform and the circumstances in which they should be performed.
The Relevant Legislation
Section 124 of the SRC Act relevantly provides:
“ 124 Application of Act to pre-existing injuries
(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.
(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
(a)where the injury, loss or damage was suffered before the commencement of the 1930 Act – under the 1912 Act;
(b)where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act – under the 1930 Act as in force when the injury, loss or damage was suffered; or
(c)in any other case – under the 1971 Act as in force when the injury, loss or damage was suffered.
…”
In s 4(1) of the SRC Act the following phrases are defined as follows:
“ the 1912 Act means the Commonwealth Workmen’s Compensation Act 1912.
the 1930 Act means the Commonwealth Employees’ Compensation Act 1930.
the 1971 Act means the Compensation (Commonwealth Government Employees) Act 1971.”
Section 16(1) of the SRC Act 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.”
In s 4(1) of the SRC Act the phrase “medical treatment” is defined to mean (inter alia) “therapeutic treatment obtained at the direction of a legally qualified medical practitioner” or “therapeutic treatment by, or under the supervision of, a physiotherapist … registered under the law of a State or Territory providing for the registration of physiotherapists …”. The phrase “therapeutic treatment” is defined in s 4(1) to include “treatment given for the purpose of alleviating an injury”.
Part XI of the SRC Act confers on the respondent the function of determining and managing claims under that Act that relate to defence service that occurred before July 2004, and s 147(1) provides that, for that purpose, references in Part II (ss 14–27, 29–33) to Comcare are to be taken as references to the respondent.
The Issue
It is common ground that, pursuant to s 124(1A) of the SRC Act, the applicant is entitled to compensation under that Act in respect of the injury on the basis that compensation was payable to him in respect of that injury under the Commonwealth Employees’ Compensation Act 1930 (Cth).
It is also common ground that the respondent continues to be liable, pursuant to s 16(1) and Part XI of the SRC Act, to pay compensation to the applicant in respect of the cost of physiotherapy treatment in relation to the injury.
The issue for the Tribunal’s determination relates to the nature and frequency of the physiotherapy treatment that it was “reasonable for the [applicant] to obtain in the circumstances” (within the meaning of s 16(1) of the SRC Act) in relation to the injury, from 25 January 2011 to date.
Analysis
According to the evidence before the Tribunal, the relevant physiotherapy treatment which the applicant has obtained at the premises of Body Point Physiotherapy in Geraldton, and for the cost of which the respondent accepted liability to pay compensation to the applicant pursuant to s 16(1) of the SRC Act on a weekly basis up until 25 January 2011, consisted of a one-hour session comprising Pilates exercises under the supervision of a physiotherapist for approximately 45–50 minutes, and lumbar joint mobilisation and “myofascial techniques” performed by a physiotherapist for the remaining 10–15 minutes (“the relevant treatment”).
The Tribunal is satisfied, on the basis of the evidence before it, that the relevant treatment constitutes “medical treatment”, as defined in s 4(1) of the SRC Act, being “therapeutic treatment obtained at the direction of a legally qualified medical practitioner” (see para (b) of that definition), and “therapeutic treatment by or under the supervision of a [registered] physiotherapist” (see para (d) of that definition). The Tribunal notes that the respondent has not disputed that the relevant treatment is “medical treatment”, within the meaning of s 16(1) of the SRC Act, and the Tribunal so finds.
The respondent has, in effect, determined, however, that, as from 25 January 2011, it was no longer “reasonable … in the circumstances” (within the meaning of s 16(1) of the SRC Act) for the applicant to obtain the relevant treatment on a weekly basis, but that, from that date, it was “reasonable … in the circumstances” for him to obtain that treatment on a monthly basis.
The word “reasonable” is relevantly defined in Macquarie Dictionary as:
“ 3 not exceeding the limit prescribed by reason; not excessive … 4 moderate, …”
and in The New Shorter Oxford English Dictionary as:
“5 Within the limits of reason; not greatly less or more than might be thought likely or appropriate; moderate …”
The determination of the question whether it was “reasonable … in the circumstances”, within the meaning of s 16(1) of the SRC Act, for the applicant to continue to obtain the relevant treatment on a weekly basis from 25 January 2011 is a matter of objective judgment; it is not a matter of mere subjective belief or opinion, although regard may be had to “subjective factors related to the nature of the injury”: Re Jorgensen and Commonwealth (1990) 23 ALD 321 at 325.
The Tribunal accepts the respondent’s submission, based on Comcare Australia v Rope (2004) 135 FCR 443 and Comcare v Holt (2007) 94 ALD 576, that it is required, in determining whether it was “reasonable for the [applicant] to obtain [the relevant] treatment] in the circumstances”, within the meaning of s 16(1) of the SRC Act, to engage in a “costs/benefit analysis” in relation to the relevant treatment. Such an analysis will involve weighing the benefit of that treatment to the applicant against the cost of obtaining it, taking into account the availability of comparable beneficial treatment at a lower cost: see Rope at 448.
In the present case the Tribunal accepts the applicant’s evidence as to the primary benefits he has derived from the relevant treatment, namely, substantial relief from back pain resulting from the injury (thereby reducing his need to take analgesic medication) and increased mobility. The Tribunal notes, furthermore, that Dr Pollard, the applicant’s former treating general practitioner, referred (in his letter of 12 July 2011 – see paragraph 16 above) to the ways in which the applicant had benefited from the relevant treatment and unhesitatingly recommended that that treatment be continued on a weekly basis.
Dr Bowles, on the other hand, has opined that:
·“passive treatments” – comprising, in the applicant’s case, lumbar joint mobilisation and “myofascial techniques” – are “not reasonable treatment” for the applicant’s ongoing back pain “given its longstanding nature”, but that “3-monthly reviews” would be reasonable, with “occasional back spasms” being treated if they occurred;
·the Pilates program, which the applicant has been performing, is appropriate exercise activity for his back condition, and performance by the applicant of that program once per week “on a self-managed basis” would be satisfactory to maintain the benefits gained from that program, with 3-monthly reviews of exercises and activity being appropriate.
The Tribunal notes that Mia Royce, the applicant’s treating physiotherapist, in her letter of 16 May 2011 (set out in paragraph 15 above), confirmed that, in recent correspondence with Rebecca Tweedy (Military Rehabilitation and Compensation Group), she had suggested that “the exercise component of his treatment on a weekly basis should not change” but that “the frequency of mobilisation and myofascial treatment” could be reduced, although she did not specify the extent of such reduction. The Tribunal notes, however, that Ms Tweedy, in her letter of 20 January 2011 (set out in paragraph 14 above), referred to her conversation with Ms Royce on 28 October 2010 and stated that Ms Royce had "suggested cutting the physio to monthly”. The Tribunal infers that “the physio” refers to “mobilisation and myofascial treatment” and, on that basis, it accepts Ms Tweedy’s record of that conversation.
Although Dr Bowles was requested by the respondent’s solicitors to express, in his report, his “opinion as to what frequency of physiotherapy was reasonable for [the applicant’s] injury from January 2011 to date”, his response, in the Tribunal’s opinion, did not directly address that matter but rather consisted of general statements (expressed in the present tense) as to the forms of treatment that, in his opinion, are reasonable, or not reasonable, treatment for the applicant’s injury. The pertinent matter, however, is the reasonableness or unreasonableness of physiotherapy treatment for the applicant’s back pain symptoms resulting from the injury in the period from 25 January 2011 to date, and, as regards the period prior to Dr Bowles’ examination of the applicant on 6 February 2012, the Tribunal prefers the opinion of Dr Pollard, who was treating the applicant in that period, to the opinion of Dr Bowles. Dr Pollard’s opinion, as expressed in his letter of 12 July 2011 (see paragraph 16 above), was that the physiotherapy program which the applicant had been undertaking up until 25 January 2011 should continue.
Having regard to the evidence before it, the Tribunal is satisfied that the applicant gained significant benefits, primarily by way of substantial relief from back pain and increased mobility, from the relevant treatment which he received on a weekly basis. The fact that the applicant also derived benefit from hydrotherapy does not, in the Tribunal’s opinion, affect the importance of the particular benefits, in the form of pain relief and increased mobility, which he gained from the relevant treatment. The Tribunal notes that Ms Royce regarded it as “very important” that the applicant also continue his hydrotherapy program on a weekly basis (see paragraph 15 above) and that Dr Bowles supported the applicant’s also continuing with his hydrotherapy program (see paragraph 19 above), and it accepts that physiotherapy and hydrotherapy are complementary forms of treatment in the applicant’s case.
As regards the cost of the relevant treatment, the evidence before the Tribunal indicates that the cost of each hourly session is $60.00 (see T120; T135, p 218). That, it seems to the Tribunal, is not, in itself, an excessive cost, although the Tribunal acknowledges that the respondent has been funding the cost of that treatment (and associated travelling expenses) since 2004, as well as the cost of hydrotherapy (and associated travelling expenses) since 2003. The Tribunal, furthermore, notes Dr Bowles’ opinion that it would be appropriate for the applicant’s Pilates program to be performed “on a self-managed basis”. There is, however, no specific evidence before the Tribunal regarding the availability in the Geraldton area (where the applicant resides) of alternative facilities where the applicant might have performed Pilates exercises, using appropriate apparatus, “on a self-managed basis”, at a lesser cost, in the period from 25 January 2011 to date. In the absence of such evidence, the Tribunal is not prepared to make a relevant finding on the basis that such alternative facilities were in fact available to the applicant in that period and are presently available to him.
Findings
Having regard to the whole of the evidence in this matter regarding the relevant treatment – including evidence regarding the benefit of that treatment to the applicant and the cost of obtaining that treatment – the Tribunal makes the following findings, for the purposes of s 16(1) of the SRC Act:
·in the period from 25 January 2011 to 6 February 2012 (being the date of Dr Bowles’ examination of the applicant and his report thereon to the respondent’s solicitors), it was “reasonable … in the circumstances” for the applicant to continue to obtain, in relation to the injury, the whole of the relevant treatment (comprising supervised Pilates exercises, lumbar joint mobilisation and “myofascial techniques”), which he had been obtaining as at 25 January 2011, on a weekly basis;
·in the period from 7 February 2012 to date, it was “reasonable … in the circumstances” for the applicant to continue to obtain, in relation to the injury, the therapeutic treatment comprising Pilates exercises under the supervision of a registered physiotherapist, which he had been obtaining as at 25 January 2011, on a weekly basis;
·in the period from 7 February 2012 to date, it was not “reasonable … in the circumstances” for the applicant to continue to obtain, in relation to the injury, the therapeutic treatment comprising lumbar joint mobilisation and “myofascial techniques” by a registered physiotherapist, which he had been obtaining as at 25 January 2011, on a weekly basis;
·in the period from 7 February 2012 to date, it was “reasonable … in the circumstances” for the applicant to obtain, in relation to the injury, the abovementioned therapeutic treatment comprising lumbar joint mobilisation and “myofascial techniques” by a registered physiotherapist on a monthly basis (as suggested by Ms Royce to Ms Tweedy on 28 October 2010), with 3-monthly reviews (as recommended by Dr Bowles).
Decision
For the above reasons the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable to pay compensation, in accordance with s 16 of the SRC Act, to the applicant in respect of the injury as follows:
·for the period from 25 January 2011 to 6 February 2012 – compensation in respect of the cost of the therapeutic treatment comprising Pilates exercises under the supervision of a registered physiotherapist and lumbar joint mobilisation and “myofascial techniques” by a registered physiotherapist (which the applicant was obtaining in relation to the injury as at 25 January 2011) on a weekly basis;
·for the period from 7 February 2012 to date – compensation in respect of the cost of the therapeutic treatment comprising Pilates exercises under the supervision of a registered physiotherapist (which the applicant was obtaining in relation to the injury as at 25 January 2011) on a weekly basis;
·for the period from 7 February 2012 to date – compensation in respect of the cost of the therapeutic treatment comprising lumbar joint mobilisation and “myofascial techniques” by a registered physiotherapist (which the applicant was obtaining in relation to the injury as at 25 January 2011) on a monthly basis, with 3-monthly reviews.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member. ......[sgd D Brodie]................................
Administrative Assistant
Dated 10 October 2012
Dates of hearing 16, 17 August 2012 Applicant In person Representative of the Respondent Mr B Dube Solicitors for the Respondent Sparke Helmore
0
2
0