Websdale and Telstra Corporation Limited
[2005] AATA 672
•14 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 672
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/994
GENERAL ADMINISTRATIVE DIVISION
Re: ANTHONY WEBSDALE
Applicant
And: TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 14 July 2005
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes its decision as follows:
1.the respondent remains liable for the ongoing provision of medical treatment for the applicant;
2.the respondent's liability for the provision of chiropractic treatment is suspended for a period of 12 months;
3.during this period of suspension, the respondent shall arrange treatment as recommended by the expert medical witnesses in the form of referral to and treatment by a multi‑disciplinary pain clinic and appropriate rehabilitation;
4.on the completion of 12 months of treatment by a pain clinic and dissipation of a rehabilitation program, the applicant's need for chiropractic treatment should be reassessed.
The respondent shall pay the applicant's costs of the application for review.
(sgd) E.A. Shanahan
Member
COMPENSATION – accepted liability – reasonable medical treatment – alternative treatment recommended but not instituted – liability of the respondent to provide specialist recommended treatment programs – respondent's liability for chiropractic treatment suspended and to be reviewed on the basis that it is not a long term therapeutically beneficial form of treatment
Safety, Rehabilitation and Compensation Act 1988
Re Popovic and Comcare (2002) 64 ALD 171
Plumb v Comcare (1992) 39 FCR 236
Comcare v Watson (1997) 46 ALD 481
Rosillo v Telstra Corporation Limited (2003) 77 ALD 396
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Re Liu and Comcare (2004) 79 ALD 119
REASONS FOR DECISION
14 July 2005 Miss E.A. Shanahan, Member
1. This is an application by Anthony Websdale (the applicant) for review of a decision of a delegate of Telstra Corporation Limited (the respondent) (Telstra) dated 11 June 2004, that the respondent was not liable to pay the applicant compensation in respect of chiropractic treatment and purported to end the respondent’s liability for further medical treatment. This decision was made on the basis that there was no benefit arising from continuing chiropractic treatment for chronic back pain. The primary determination was affirmed on 5 July 2004 by a senior case manager of GIO Australia on behalf of the respondent.
2. The applicant was represented by Mr J. Ferwerda of counsel, instructed by Ellis Palmos & Co, solicitors. The respondent was represented by Mr N. Horner of counsel, instructed by Sparke Helmore, solicitors. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). The parties tendered the following documents:
· Report of Mr D. Billet, orthopaedic surgeon,
dated 21 August 1997 Exhibit A1
· Report of Dr D. Stevenson, chiropractor, dated 22 June 1999 Exhibit R1
· Report of Dr S. Reddy, general practitioner,
dated 18 June 1996 Exhibit R2
EVIDENCE
3. Evidence before the Tribunal was given by the applicant, Dr Donald Stevenson, Dr Shradhanand Reddy, Dr Andrew Gibson, Mr Mustapha Khan and Mr Ian Barrett.
BACKGROUND TO THE APPLICATION
4. Mr Websdale joined the company subsequently known as Telstra in 1974, as a linesman. He continued in this role until he was made redundant by the respondent in February 1999. In 1985 he injured his lower back and was unable to work for two weeks. He experienced several bouts of recurrent back pain after lifting manhole covers and crawling under houses to perform his linesman's tasks. On 26 May 1994 he injured his right shoulder at work. The respondent accepted liability for both of these injuries. The respondent paid weekly income payments and Mr Websdale's costs of medical treatment, including chiropractic treatment. On 20 May 2002 Mr Websdale received a lump sum payment for permanent impairment of his right shoulder.
5. In early 2004 the respondent reviewed Mr Websdale's entitlements and obtained several specialists reports. Based on these reports, the respondent determined that the chiropractic treatment that Mr Websdale was receiving was of no value (reports of Mr Khan and Dr Gibson) and ceased liability to pay compensation for this form of treatment.
6. Mr Websdale applied for review of the decision by the Administrative Appeals Tribunal on 25 August 2004.
EVIDENCE BEFORE THE TRIBUNAL
Mr Websdale
7. Mr Websdale confirmed that he had worked for Telstra and its predecessors from 1974 until he accepted a redundancy in 1999. The redundancy had been offered as he was unable to perform his duties as a linesman because of his injuries to his back and right shoulder. He had injured his back in 1985 while lifting steel guards from a van and was off work for two weeks. Over the years he has suffered further minor injuries and with the passage of time his back pain deteriorated. In addition to low back pain, he also experienced pain in his legs with associated pins and needles and numbness. In 1994 he had injured his right shoulder when a ladder fell on his shoulder. While he had no time off work immediately after the injury, with the passage of time, he developed pain and limited movement in the right shoulder. Mr Websdale confirmed that he had received a total and permanent disablement payment from his superannuation scheme.
8. Following the back injury in 1985, Mr Websdale said that he had received physiotherapy treatment, but this had been of no benefit. He had also been referred to an orthopaedic surgeon regarding his back symptoms; and subsequently to another orthopaedic surgeon for his shoulder injury. Both surgeons had suggested that surgical treatment could be beneficial. However, Mr Websdale was reluctant to consider surgical intervention because of the associated risk and the experiences of friends who had undergone surgical treatment. Mr Websdale stated that he had never undergone a pain management course nor a rehabilitation program, and that no one had ever suggested that he should.
9. In 1995, at the recommendation of a friend, Mr Websdale consulted Dr Stevenson, a chiropractor. Since 1995 he has attended a chiropractor once every two weeks and more frequently if his pain becomes more acute. The chiropractic treatment consists of manipulation of his back and his right shoulder; and percussion treatment, which is a form of electrical massage, and ultrasound treatment to his shoulder. This treatment leads to instant reduction of his pain associated with increased mobility; but the benefit lasted usually only two weeks.
10. The respondent stopped paying for the chiropractic treatment in November 2004. Mr Websdale continues to attend on a fortnightly basis, at his own cost. The longest period he has gone without chiropractic treatment was three weeks. Mr Websdale was taking Panadeine Forte, Celebrex and Panadol, which was prescribed by his general practitioner, Dr Reddy. Following his chiropractic treatment, Mr Websdale was able to reduce the level of analgesics taken. However, this reduction was a temporary phenomenon.
11. Mr Websdale said that he was unable to bend, lift, perform sudden movements or sit or stand too long in any one position. His shoulder movement was limited and he could not raise his arm above 90 degrees. He said he tended to use his left arm and hand to protect his right shoulder; e.g. he carries his wallet in his left back pocket.
12. Under cross‑examination Mr Websdale said that he was unable to do much in the way of gardening, but might occasionally weed and mow the lawn. He told the Tribunal he no longer plays tennis and cricket and no longer went fishing. Mr Websdale could not recall the frequency of his chiropractic treatments in the early years. Nor could he recall that Dr Reddy had stated that the level of chiropractic treatment he was receiving was excessive. Likewise, he could not recall the frequency of treatment in 1999 or whether Dr Reddy had completed his total and permanent disability application form or supported his claim for compensation. Mr Websdale agreed that, despite the benefit he obtained from chiropractic treatment, he was never pain free. Mr Websdale said that he last saw Mr Turner, an orthopaedic surgeon, regarding his back in 1997; and that he had never seen a rheumatologist or psychologist. Dr Reddy had not suggested that he be reviewed by such specialists. While he had been instructed regarding an exercise program, Mr Websdale said that he had been unable to do it because of his pain levels. He said he no longer attended hydrotherapy.
13. The Tribunal asked Mr Websdale if he was still taking Celebrex, given that this drug has now been withdrawn. He informed the Tribunal that he had been changed to Mobic. The Tribunal asked him to describe his usual activities, to which he replied that he mainly spent the day sitting and watching television; and that the limit of his activities was going to the letterbox to collect his mail.
Dr Stevenson
14. Dr Stevenson adopted his reports (T10, T12, Exhibit R1) as true and correct in all details. He confirmed that Mr Websdale suffered from acute flare ups of back pain; and that following chiropractic treatment, Mr Websdale noted an immediate change with reduction in his pain levels and an improvement in his mobility.
15. Under cross‑examination Dr Stevenson agreed that in 1996 he had been treating Mr Websdale every two to three days in an effort to effect rapid improvement. When this regime was unsuccessful, Mr Websdale's treatments were made less frequent. Dr Stevenson agreed that at no time did the chiropractic treatment render Mr Websdale totally free of pain. In fact, over the years his pain had become more severe and his mobility diminished.
16. Mr Horner pointed out that Dr Stevenson's clinical notes had been summonsed, but had not been provided. Dr Stevenson revealed that he does not keep clinical notes with regard to Mr Websdale, although he does keep such records with some patients. In fact, there would have only been an original file note some 10 years ago, which he was unable to find. Thus, there were no notes to support Dr Stevenson and Mr Websdale's statements that chiropractic treatment provided an immediate improvement in both pain levels and mobility. Mr Horner suggested that Mr Websdale may have become psychologically dependent on his chiropractic treatment. To which Dr Stevenson replied that he was not a psychologist, but that he was well aware that Mr Websdale had real muscle spasms and he believed that he was physically dependent on chiropractic treatment. Dr Stevenson disagreed with Mr Horner's suggestion that it was the medication prescribed by Dr Reddy which provided the real benefit and not the chiropractic treatment. Dr Stevenson disagreed because Mr Websdale derived instant benefit from the treatment. Dr Stevenson had not advised an alternative treatment or review by a specialist, and he was unable to see that a referral to an orthopaedic surgeon would be of any benefit.
17. The Tribunal asked Dr Stevenson if he had recommended Mr Websdale undertake an exercise program at home. He replied that he had, but that Mr Websdale had been unable to do so because of his pain levels.
Dr Reddy
18. Dr Reddy provided two reports (T15, Exhibit R2) in which he had recommended that Mr Websdale continue chiropractic treatment. Dr Reddy confirmed that this was still his view, as it reduced Mr Websdale's pain levels and improved his walking distance. He also agreed that it lessened the amount of analgesic medication that Mr Websdale needed to take. Dr Reddy did not feel a pain management course would benefit Mr Websdale, nor would a referral to an orthopaedic surgeon, given that Mr Websdale's condition was now chronic. Dr Reddy did qualify his support for ongoing chiropractic treatment for Mr Websdale, to the extent that he believed such treatment should be limited to one to three sessions per month. He said he believed if Mr Websdale suffered an acute exacerbation of his pain, it was more appropriate for him to see a doctor than a chiropractor.
19. Under cross‑examination Dr Reddy said he was not convinced of the benefit of chiropractic treatment for any patient, but relied on Mr Websdale's reported benefit from the treatment. He agreed that over the years Mr Websdale's condition had deteriorated, but the ongoing manipulation had decreased his use of analgesics and that currently Mr Websdale used 100 Panadeine Forte each two months. Dr Reddy said that he had not recommended alternate treatment as he relied on the reports of the orthopaedic surgeons, albeit that they were some 8 years old. Dr Reddy had not noted any deteriorating neurological symptoms or signs in Mr Websdale; nor any evidence of symptoms due to a L5 nerve root impingement, which was suggested as a possibility by Mr Michael Khan. It was Dr Reddy's opinion that Mr Websdale's treatment regime should consist of his current medication, his chiropractic treatments, walking and swimming.
Dr Gibson (by telephone)
20. Dr Gibson, an occupational health physician, provided a report dated 24 May 2004 (T13) at the request of the respondent. Dr Gibson had been specifically asked if, in his opinion, chiropractic treatment should be continued. Dr Gibson had not seen or examined Mr Websdale and had reached his opinion purely on the documentation provided. In his report Dr Gibson stated that there is no evidence that such treatment is of benefit in the management of chronic back pain. He concluded that further treatment should not be approved. Dr Gibson reiterated his opinion in his oral evidence, stating that chiropractic treatment would provide a short term response only, and therefore was not appropriate treatment. Dr Gibson believed that the normal progress of low back injuries was one of increasing pain and decreasing mobility, but an active lifestyle could delay these changes. Dr Gibson also believed that Mr Websdale's low level physical activity was likely to make him worse. Dr Gibson recommended an increase in physical activity. He believed that passive treatment, such as chiropractic therapy, resulted in dependency on the treatment and the assumption by the patient of a sick role.
21. Dr Gibson did not have his file regarding Mr Websdale with him as this was in the keeping of GIO Insurance Company for whom he provided opinions. Under cross‑examination he said the literature supported his evidence that chiropractic treatment was of no benefit in this setting. Despite these comments, he agreed with Mr Ferwerda that there was no indication to reduce Mr Websdale's level of analgesics and anti‑inflammatory agents, even though these resulted in only temporary improvement. Dr Gibson recommended that Mr Websdale needed to be reassessed medically as the orthopaedic opinions being relied upon were out of date.
22. In answer to a question posed by the Tribunal, Dr Gibson said any form of manipulation, including orthopaedic manipulation, was bad treatment, as was the previously fashionable treatment of "rest in bed".
Mr M. Khan
23. Mr Khan is an orthopaedic surgeon who provided a report to the respondent dated 6 February 2004 (T8). In his report Mr Khan stated that ongoing chiropractic treatment was not warranted. Mr Horner asked him to expand on that opinion. Mr Khan said that, despite 10 years of continuous chiropractic treatment, Mr Websdale had not shown any permanent relief. In fact, his condition had deteriorated, in that his pain had increased and his mobility decreased. Mr Khan had also suggested that Mr Websdale had some L5 nerve root impingement on the basis of the CT scan findings. Mr Khan said in such a setting he would be very apprehensive of Mr Websdale having any manipulative therapy, because of the likelihood of such treatment causing further deterioration. Given the CT scan findings and the question of L5 nerve root impingement, Mr Khan recommended that Mr Websdale be seen by a neurologist. Under cross‑examination by Mr Ferwerda, Mr Khan said that he had treated many patients with similar back problems and, while he was not opposed to chiropractic treatment, he did not refer patients for such treatment. He said he believed where a patient, such as Mr Websdale, had had long term chiropractic treatment without permanent benefit, the patient should be re‑investigated and reassessed. This would involve repeat CT scanning and possibly a MRI scan. Mr Khan said he had personally seen the result of manipulation of the spine by orthopaedic surgeons, physiotherapists and chiropractors leading to neurological complications. He advised alternative treatment was indicated in the form of referral to a multi‑disciplinary pain clinic, where techniques such as TENS stimulation could be performed and a rehabilitation program undertaken.
24. The Tribunal asked Mr Khan if he felt, in light of Mr Websdale's lengthy history, that a rehabilitation program and referral to a pain management clinic was likely to be successful. The Tribunal also asked Mr Khan whether there would be a place for less invasive surgery such as arthroscopy in the diagnosis and treatment of Mr Websdale's right shoulder pathology. Mr Khan was of the opinion that, despite the 10 year gap and prolonged passive treatment, a rehabilitation program and referral to a pain management clinic were still indicated.
Mr I. Barrett (by telephone)
25. Mr Barrett is an orthopaedic surgeon who provided a report dated 17 September 2002 (T6). Mr Barrett adopted his report as true and correct in all respects. Mr Barrett had found Mr Websdale to be totally and permanently incapacitated for work as a result of his back injury and his right shoulder injury, although he doubted the severity of the latter. In his opinion there was no need to continue chiropractic or physiotherapy treatment as this had not provided long term benefit to Mr Websdale. In his oral evidence Mr Barrett said he did not believe in chiropractic treatment and had never referred a patient for such treatment, although he had had reports of people deriving some benefit from chiropractic treatment. Under cross‑examination Mr Barrett reiterated that he did not agree with chiropractic treatment and disagreed with those specialists who approved such treatment.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
26. Mr Derek Billett, orthopaedic surgeon, provided a report to the respondent dated 21 August 1997. Having taken a detailed history and performed a complete examination on Mr Websdale, he diagnosed soft tissue injury to Mr Websdale's right shoulder and exacerbation of the pre‑existing congenital and degenerative changes at the lumbo‑sacral junction, with a suggestion of some nerve root irritation. Mr Billett had recommended a rehabilitation program; and that Mr Websdale attend a gymnasium with a supervised program; swim in a heated pool, sauna and spa; use an exercise bicycle and exercise with light weights. He also stated that, if Mr Websdale benefited from chiropractic treatment, he should continue with chiropractic treatment. In 1997 Mr Billett regarded Mr Websdale as not being totally incapacitated; and thus capable of office duties or those of a field work supervisor.
RELEVANT LEGILATION
27. The relevant sections of the Safety, Rehabilitation and Compensation Act 1988 (the Act) are s 4 s 14 and s 16. Sections 14 and 16, in so far as relevant, state:
14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
…
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.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a)to, or in accordance with the directions of, the employee;
(b)if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c)if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation—to the person to whom that cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
(6) Subject to subsection (7), if:
(a)compensation in respect of the cost of medical treatment is payable; and
(b)the employee reasonably incurs expenditure in doing either or both of the following:
(i)making a necessary journey for the purpose of obtaining that medical treatment;
(ii)remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
…
SUBMISSIONS
The Respondent
28. The respondent submitted that, despite the years of chiropractic treatment on a regular basis, with increased attendances during acute exacerbations, the applicant’s condition had continued to deteriorate. This deterioration was evidenced by his increasing back and shoulder pain and his decreased mobility, such that the applicant's activity is now very limited. The respondent submitted that the applicant's reliance on the temporary relief provided by chiropractic treatment and his treating practitioner's failure to consider alternative treatment had resulted in alternative treatment not being considered or advised.
29. The respondent submitted that the treating practitioner's reliance on orthopaedic opinions provided in 1997 was unacceptable, as these opinions were now out of date.
30. The respondent relied on the decision in Re Popovic and Comcare (2002) 64 ALD 171 where the trustee said (at 177):
…
In relation to the applicant's claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant's current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived.
and submitted that, as in Popovic, the applicant had become dependent on chiropractic treatment and had said "…I have to have it". The respondent relied on Mr Khan's evidence that it was still worthwhile for the applicant to pursue alternative treatment in the form of attendance at a pain management clinic and a rehabilitation program, despite the applicant's long history of back pain and shoulder pain with restriction of all movement.
The Applicant
31. The applicant submitted that Dr Stevenson's provision of chiropractic treatment satisfied the requirements of s 4 of the Act and was reasonable in terms of s 16 of the Act. The applicant's evidence was to the effect that chiropractic treatment gave him immediate relief from pain, increased mobility and a decreased need for medication, albeit these effects were short lived.
32. The applicant relied on the precedent of Comcare v Watson (1997) 73 FCR 273 and distinguished Popovic on the grounds that the facts were basically different, as in Popovic, the applicant derived no benefit from prolonged physiotherapy treatment, while Mr Websdale derived major, but short lived benefit.
33. The applicant submitted that as Dr Gibson had not seen the applicant his evidence, which relied on the medical literature, should carry little weight. Dr Barrett had declared his opposition to chiropractic treatment for any condition and this coloured his opinion. In contrast, the applicant submitted, Mr Khan had supported chiropractic treatment in certain circumstances, while expressing concern for potential complications of such treatment.
34. The applicant also submitted that the opinions of the treating orthopaedic surgeon in 1997 should carry weight, given that the applicant had suffered from lower back pain since 1985.
THE TRIBUNAL'S DELIBERATIONS
35. The Tribunal acknowledges that the applicant has suffered from severe back pain since 1985 as the result of a work injury; and from right shoulder pain and limitation of movement since 26 May 1994 as the result of a second work injury. His only continuing treatment has been in the form of frequent chiropractic sessions as he has declined surgical treatment for both his lumbar spine lesion and his right shoulder injury. There is no doubt that the chiropractic treatment provides short term, i.e. two week, relief of pain with consequent increased mobility and reduction of analgesia use. On the evidence before the Tribunal, Mr Websdale has not been offered, or referred for, alternative treatment modalities or reassessed by a medical specialist since 1997.
36. The respondent has continued liability for the provision of medical treatment for Mr Websdale for these two conditions (Plumb v Comcare (1992) 39 FCR 236; Rosillo v Telstra Corporation Limited (2003) 77 ALD 396; Australian Postal Corporation v Oudyn (2003) 73 ALD 659 and Re Liu and Comcare (2004) 79 ALD 119). The issue before the Tribunal is essentially whether Mr Websdale’s current chiropractic treatment is therapeutic and reasonable; and thus should not have been ceased by the respondent on and from 11 June 2004.
37. Section 4(1) of the Act defines medical treatment as:
(a)medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c)…
(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
…
38. In the same section therapeutic treatment is defined to include an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
REASONABLENESS OF TREATMENT
39. Section 16(1) of the Act refers to Comcare as liable to pay for the cost of medical treatment (being treatment that it was reasonable for the employee to obtain in the circumstances). The Tribunal must therefore consider the reasonableness of continuing Mr Websdale's fortnightly chiropractic treatments.
40. The concepts of "therapeutic", "therapeutic benefit", "alleviation and "reasonableness" have been considered by the Tribunal and the Federal Court of Australia. The applicant relied upon the decision of Finn J in Comcare v Watson (1997) 46 ALD 481, where his Honour stated:
...
The applicant has submitted that a treatment can only be “therapeutic” if its object is to cure a disease or injury. Though some dictionary definitions do emphasise the “healing or curative” connotation of the words “therapy” and “therapeutic”: see eg Shorter OED, 3rd ed; the latter's use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the s 4 definition of “therapeutic treatment” which includes “treatment given for the purpose of alleviating an injury”: [emphasis added]. The Shorter OED, for example, defines “alleviation” as “the action of lightening…pain”. That usage is an appropriate one to apply here given the s 4 definition itself. And it permits a construction which accords with the beneficial purposes of the legislation: see Thiele's case, [(1997) 11 AAR 376] 380-381.
The respondent, while acknowledging Watson's case, referred to the decision in Popovic, where the Tribunal said, in reference to therapeutic benefit (at 178):
…in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object…
The Tribunal went on to state (at 178):
Even if we found that the short-term therapeutic benefit derived by the applicant was therapeutic for the purposes of the Act, in our opinion it is not reasonable treatment in the circumstances for the reasons mentioned above. To the extent the applicant derives some therapeutic value from the psychological effect of receiving the treatment, psychologists could better provide this in an appropriately devised pain management plan.
41. In regard to the concept of reasonableness, the respondent relied on the Tribunal’s decision in Re Chowdhary and Comcare [1998] AATA 13003, where the Tribunal said:
…While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee; (cf Re Payne and Comcare (Decision No 11624, 19 February 1997, at para 21ff).
The respondent also relied on the Tribunal’s decision in Popovic, where the Tribunal found that passive physiotherapy for a neck injury was not reasonable: "…The physiotherapy he was having could not improve him in the long term, has limited, if any, short term benefit, and may in fact be contra-indicated…". The applicant distinguished Popovic on a factual basis, as the applicant in that case "often reported to his general practitioner that the physiotherapy gave no relief". This contrasted with Mr Websdale's evidence that his chiropractic treatment gave instant, albeit short-lived, relief.
42. Mr Websdale’s immobility has increased with the passage of time, as he freely admits. Dr Reddy and Dr Stevenson have supported this position in their testimony. Neither doctor has recommended alternative treatment, or reassessment of Mr Websdale's clinical status. There is no documentary evidence of ongoing assessment of Mr Websdale's response to his current treatment, in terms of recording changes in the range of movement of his lumbar spine or right shoulder, his analgesic usage and his general level of activity.
43. Dr Reddy and Dr Stevenson have little faith in the results of treatments such as those provided by multi‑disciplinary pain management clinic, and had relied on specialist advice given eight years ago.
44. In contrast Mr Khan recommended that Mr Websdale be assessed by both a multi‑disciplinary pain clinic and a rehabilitation clinic, despite the duration of his compensable injuries. Dr Gibson stressed the need for maintenance of an active lifestyle, as opposed to passive treatment which can create dependency and a sick role. Mr Billett in his written report also advised that the applicant undergo a rehabilitation program. Dr Barrett did not comment on any alternative treatment. He clearly declared himself opposed to any chiropractic treatment for any condition.
45. Based on the evidence that Mr Websdale's back and right shoulder condition are progressively deteriorating, despite fortnightly chiropractic treatment and appropriate medication, the Tribunal believes that it is in the applicant's best interests that he be reassessed by appropriate medical specialists, such as an orthopaedic surgeon and a multi‑disciplinary pain management clinic. The Tribunal also believes that consideration should be given to providing a formal rehabilitation program
46. Mr Websdale, some eight years ago, declined surgical intervention, but this should also be reassessed given surgical techniques have advanced during this interval. The Tribunal accepts that the chiropractic treatment alleviates Mr Websdale's symptoms temporarily, as does his medication and to this extent; his current treatment can be described as therapeutic. Mr Khan has suggested that alternative treatment may result in more lasting improvement and such alternatives should be explored by the respondent for the applicant's long term benefit.
47. Should the alternative treatments not provide relief after a 12‑month assessment period, or should the specialists involved in the reassessment find that such treatment is not indicated, the respondent should resume liability for chiropractic treatment, given the applicant's evidence that he derives immediate benefit from such therapy. It is the respondent's responsibility to seek and provide a maximally beneficial treatment program for Mr Websdale.
48. The respondent shall pay the applicant's costs of the application for review.
I certify that the hundred and forty‑eight [48] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 09 May 2005
Date of Decision: 14 July 2005
Counsel for the applicant: Mr J. Ferwerda
Solicitor for the applicant: Ellis Palmos & Co
Counsel for the respondent: Mr N. HornerSolicitor for the respondent: Sparke Helmore
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