Wells and Comcare (Compensation)
[2022] AATA 1911
•22 June 2022
Wells and Comcare (Compensation) [2022] AATA 1911 (22 June 2022)
Division: General Division
File Number: 2018/2551
Re:Claudette Wells
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:22 June 2022
Place:Hobart
The decision under review is affirmed.
.................[sgd].......................................................
A G Melick AO SC, Deputy PresidentCatchwords
COMPENSATION – work-related injury – whether Comcare is liable to pay compensation – whether Comcare is liable for treatment – effect of secondary condition on liability – whether treatment is reasonable – massage – acupuncture – gym program – length of treatment – effect of treatment – decision under review affirmed.
Legislation
Compensation (Commonwealth Employee’s Act) 1971
Safety, Rehabilitation and Compensation Act 1998Cases
Alamos and Comcare [2014] AATA 629
Aylett and Comcare (2019) AATA 1474
Bashar v ComcareAustralia [2002] FCA 837
Bayani and Australian Postal Corporation [2015] AATA 342
Canute v Comcare [2006] HCA 47
Chowdhary and Comcare [1998] AATA 448
Comcare v Rope (2004) 80 ALD
Comcare v Holt [2007] FCA 405
Comcare v Watson (1997) 73 FCR 273
Durham and Comcare [2014] AATA 753
Ellison vComcare [2022] FCA 95
Evans and Comcare (Compensation) [2016] AATA 827
Howard and Comcare [2019] FCA 1031
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Popovic and Comcare (2000) 64 ALD 171
Re Jorgenson and Commonwealth (1990) 23 ALD 321
Rope and Comcare [2013] AATA 280
Rope and Comcare [2018] AATA 42
Topping and Comcare [2015] AATA 525
Wuth and Comcare [2022] FCAFC 42Secondary Materials
Transport Accident Commission and WorkSafe Victoria, Clinical Framework For the Delivery of Health Services (2012)
REASONS FOR DECISION
A G Melick AO SC, Deputy President
22 June 2022
INTRODUCTION
Since 1984, the Applicant has received compensation from Comcare (‘the Respondent’) to treat pain in her left arm and shoulder, which developed while she was employed by the Commonwealth.
In 2008, the Respondent determined it was not presently liable for part of her treatment regime. The Applicant applied to the Tribunal for review and by consent, the parties agreed the Tribunal should partially limit the Applicant’s entitlement to massage.
On 20 February 2018 the Respondent determined it was not presently liable to pay for the Applicant’s remaining treatment, including massage, acupuncture and the gym-program (‘the treatment’). On 20 April 2018 the Respondent affirmed that determination (‘the Decision Under Review’).
On 10 May 2018 the Applicant lodged an application for review and it is the Respondent’s present liability for the treatment that is the subject of this review.
FACTS
The Applicant began experiencing pain in her left arm and shoulder girdle on or around 11 May 1984. At the time, the Applicant was an employee of the Commonwealth and made a claim for compensation for repetitive strain injury.
On 6 September 1984 the Respondent accepted liability for repetition strain injury of the Writer’s Cramp Style which was later changed to nerve root and plexus disorder (unspecified) (‘the accepted condition’).[1]
[1] T-documents, 119.
On 3 September 2008 liability for medical expenses for osteopathy, Pilates and massage was ceased. The Applicant requested a reconsideration and on 6 February 2009 the determination of 3 September 2008 was affirmed.
The Applicant applied to the Tribunal for review of the reviewable decision dated 6 February 2009 and on 6 April 2010 the Tribunal made a consent decision accepting liability for a 90-minute massage per week with a review to be conducted after 12 months.
Following the decision in 2010, apart from a period when she was in hospital in 2016, the Applicant continued to obtain massage treatment paid for by the Respondent, generally on a weekly basis, until 20 February 2018.
Since 11 May 1984, the Applicant:
(a)in the period from 1994 to 20 February 2018 has received approximately 1350 massages at a cost of almost $110,000;
(b)the Applicant also had massages paid for by the Respondent prior to 1994 but, due to a change in the claims system, details of these massages are no longer available;
(c)from January 2017 to 20 February 2018 the Applicant had 22 acupuncture sessions paid for by the Respondent; and
(d)on 5 June 2017 the Applicant’s gym membership was renewed for 12 months. The renewal was paid for by the Respondent.
By a determination dated 20 February 2018 the Respondent declined liability to pay for the treatment.
Liability to pay for the treatment was declined by the Respondent because it considered that the treatment does not meet the principles of the Clinical Framework for the Delivery of Health Services (‘the Clinical Framework’).
On 27 March 2018 the Applicant requested a reconsideration of the determination and by a review dated 20 April 2018, the Respondent affirmed the original determination. On 10 May 2018 the Applicant lodged in this Tribunal an application for review of the Decision Under Review.
EVIDENCE
The Applicant gave evidence at the hearing and called Dr Sharman, consultant occupational physician and Dr Francis, rheumatologist and pain physician, in support of her application.
The Respondent called Dr du Plessis, neurologist and rehabilitation physician, to give evidence.
The Applicant
The Applicant is a counsellor and psychotherapist. She wrote a statement dated 19 January 2021 in support of her application which was tendered in evidence.[2]
[2] Exhibit 2.
The Applicant has held numerous roles in government agencies, commencing work at the age of 16. She has worked as a shorthand typist, has used a telex and has worked in roles where only a small amount of typing was required.
In 1984, the Applicant was seconded from Department of Science and Technology in Hobart to Canberra, where she worked as an Organisational Change and Industrial Change Manager. Her role consisted of writing reports by hand, which were often published. The Applicant explained that she began to notice pain in her left hand during the period where she was writing reports and using her left hand to write all the time. When asked about the onset of her symptoms, she explained it was the “constant use”. She also noticed her pain transformed from her elbow into her shoulder, however she had experienced some pain in both her elbow and shoulder from the beginning.
When asked about which fingers the Applicant experienced pain in, she suggested it was her fourth and fifth finger. The Applicant appeared to have a strong understanding of the medical terms used to describe the locality of her pain, which is likely to be information she had obtained in consultation with her doctors.
The Applicant’s pain increased; and on 20 March 1985 she saw Dr Frost again and complained of a constant ache in her left wrist and pain in the whole forearm when completing household tasks such as vacuuming or ironing. The Applicant agreed that she did not complain of finger pain at that consultation.
In 1986 the Applicant retired. She explained that she had been seconded to Canberra from Hobart and the transition back was not possible, leaving retirement as the only available option.[3] She made a claim for compensation with Comcare in 1984, and between 1984 and her retirement in 1986, the Applicant explained that she had been not been working but was in communications with Comcare seeking further employment.[4]
[3] Transcript, 29.
[4] Transcript, 31.
She clarified that she was writing reports for a period of “probably four” years prior to 1984. She agreed that her onset of symptoms was in the days or maybe weeks preceding May 1984.[5]
[5] Transcript, 32.
After retiring from the public service, the Applicant began a Master of Education degree in 1987, and provided counselling from her home where she was able to support her arm.[6] When she was studying, she took regular breaks and worked from a laptop that allowed her to support her arm. She received some superannuation payments and received income from her counselling work that paid for her living expenses.[7]
[6] Transcript, 33.
[7] Transcript, 35.
At this time, she received some support from Comcare to assist with housekeeping and maintenance of the garden, and treatment such as massage.[8]
[8] Transcript, 34.
The Applicant did not regularly see a doctor between her injury in 1984 and when she saw Dr Young in 1988. She gave evidence that her treatment was taken care of by “the people [she] actually went for massage and acupuncture and going and using the swimming pool for exercise”.[9]
[9] Transcript, 36.
The Applicant was also asked about her work during this time. Counsel for the Respondent referred the Applicant to the report of Dr Young in January 1988 that recorded the Applicant having undertaken casual restaurant duties and TAFE training. She experienced pain when performing restaurant duties and did not do any writing or typing while in the TAFE training role.
The Applicant accepted the accuracy of Dr Young’s report, and counsel noted there was no reference to pain in the Applicant’s fingers. The Applicant did not comment on this.
In November 1988, the Applicant was referred to Dr Hilton. Dr Hilton arranged for the Applicant to undergo nerve conduction testing, which did not reveal any abnormality. He also recorded the Applicant as experiencing “numbness predominantly (indistinct words) of [her] left hand and (indistinct words) in the thumb”.[10]
[10] Transcript, 41.
When prompted to provide an explanation for the apparent onset of pain in her fingers, the Applicant could not identify an activity that caused this discomfort. She indicated she had not undertaken any additional activity “apart from showering, dressing, going to the toilet, these sort of things”.[11]
[11] Transcript, 41.
When asked about her home environment, the Applicant explained that she lived with her adult daughter and did not have to provide her with care. She had assistance with housework and gardening, and did not perform many tasks beyond the “usual things that everyone does, have a shower and get dressed…”[12]
[12] Transcript, 43.
The Applicant also engaged in sports a long time prior to her injury. She was unable to give a rough indication of the year but agreed that whatever was recorded in the medical reports of the doctors she had seen would have been accurate.[13] Later, during cross-examination, a report containing a history of the Applicant’s engagement in sport was put to the Applicant. She recalled that she took her young daughter to squash, and this allowed the Tribunal to estimate the years she was playing squash as between 1980 and 1981, three years prior to her injury.[14]
[13] Transcript, 45.
[14] Transcript, 61.
In 2010, the Applicant saw Dr du Plessis. The Applicant disagreed with some of the factual matters recorded in the report he produced. For example, she disagreed that she would have reported walking a dog at this time.
When asked about when the Applicant began engaging in massage therapy, she indicated that it would have been almost immediately after her injury in 1984.[15] She explained that this would not have been on the advice of a medical practitioner, but rather that she began the massages herself. She simultaneously engaged in physiotherapy, weight exercises at the pool, and acupuncture once it was a permanent injury.
[15] Transcript, 50.
The Applicant explained that she receives a massage on a weekly basis, for between half-an-hour to one hour. When asked about the benefit of massage, she explained that it was significant, that it “balances” her neck, arm and shoulder.[16]
[16] Transcript, 53.
The Applicant gave evidence that she had not missed a weekly massage since she sustained her injury, and that the massages allowed her to manage certain tasks that she could not otherwise perform, such as opening jars with her left hand, unpacking and packing groceries, and opening the fridge.
At the time of the hearing, the Applicant had not received compensation from the Respondent for massages for two years. She explained that she had still been receiving massages every week and that her masseuse did not charge her, on the understanding that the Respondent would refund that money to him.[17]
[17] Transcript, 54,
Counsel for the Respondent tendered a record of a history of the Applicant’s claimed payments with the Respondent, and this was shown to the witness during the hearing.[18] She was asked to comment on the records. She said they were accurate. It was identified that the Applicant had received payments for acupuncture, and counsel for the Respondent asked the Applicant what the benefit of acupuncture was. She explained:
“it actually balances the system so because I use this arm, because I can’t use this arm in the same way, then this actually pulls the neck and the arm and without having massage and acupuncture it doesn’t actually release the body to be able to balance or if that’s the wrong words, there’s probably other words that actually describe it”.[19]
[18] Exhibit 3.
[19] Transcript, 67.
When asked about the benefit of attending weight classes in the pool, the Applicant explained that being in the pool allows her to be weightless and walk up and down with a belt around her waist.[20]
[20] Transcript, 67.
Counsel for the Respondent highlighted the fact that since her injury, there had been little to no time where she had not engaged in the above treatments. The inference was that it would be difficult for the Applicant to know the true benefit of these treatments without time spent without receiving them.
During re-examination, counsel for the Applicant asked the Applicant whether she noticed a decline in her physical health during the week between massages. She agreed that her pain was better directly after her weekly massage than just prior to a massage.[21]
[21] Transcript, 70
There was also evidence before the Tribunal of the Applicant having had two accidents: once when she fell down the stairs; and once in a car accident. She spent several weeks in hospital following the fall down the stairs but was not hospitalised due to the car accident. The Applicant denied any ongoing injury as a result of these accidents.
Dr Sharman, consultant occupational physician
Dr Sharman produced a report dated 15 May 2020[22] and a report dated 24 September 2020[23], which were tendered in evidence. He also wrote reports included in the T-documents and tendered into evidence dated 19 January 2018 and 16 March 2018.[24] The Applicant also tendered the clinical records of the Applicant kept by Dr Sharman from 31 July 2018 until the present.[25]
[22] Exhibit 5.
[23] Exhibit 6.
[24] Exhibit 1, 110-116.
[25] Exhibit 8.
Dr Sharman opined the Applicant was suffering from a compensable condition and that the tests he conducted presented symptomology consistent with his diagnosis:
“There was evidence of allodynia and temporal summation of pain to pinprick testingover the left upper limb and trunk suggestive of widespread central neural sensitization, but not evidence of a specific neurological deficit or complex regional pain syndrome (see attached report)”.[26]
[26] Exhibit 5, 4.
During examination-in-chief, he was asked about the methodologies he had used to diagnose the Applicant’s neuropathic pain condition. These included the Leeds Assessment of Neuropathic Symptoms and Signs (‘LANSS’) pain scale, upon which the Applicant scored 24 points. Dr Sharman explained:
“[I]f the score is greater or equal to 12, neuropathic mechanisms are likely to be contributing to the patient’s pain, and she’s got the maximum score of 24. Its an aide, its not the be all and end all of testing”.[27]
[27] Transcript, 90.
Dr Sharman was also asked about his use of the DASH-Exchange tool, a copy of which was tendered in evidence. The Applicant also received a high score for pain on this scale. Dr Sharman explained:
“It’s a fairly widely used standardised questionnaire about function, and its used to – and its relevant to the upper limb - the ASH stands for arm, shoulder and hand. So its just a standardised methodology for measuring reported functional deficits of the upper limb”.[28]
[28] Transcript, 90.
Dr Sharman described neural sensitisation in the following way:
“… in simple terms, sensitisation is whether you have changes in nerve endings, particularly at the synaptic end, where nerves disconnect. You have changes (indistinct) sprouting of nerve ends, and changes in the way nerves connect together, which means that certain aspects of the – certain pathways get enhanced, and other pathways get reduced”.[29]
[29] Transcript, 91.
He conceded that a clinical diagnosis of neural sensitisation posed challenges, because “at a simple level, [the nerves are] all somewhat subjective; you’re relying on the patient’s response”.[30]
[30] Transcript, 91.
He explained that upper limb cutaneous somatosensory testing is valuable in this context because there are some features of chronic pain that can be clinically determined “and the patient might not be aware of what you’re looking for, so it’s a bit more objective”.[31]
[31] Transcript, 92.
Through this testing, Dr Sharman opined that the Applicant had symptoms consistent with widespread central neural sensitisation. Dr du Plessis disagreed that this was an accepted condition by pain specialists and Dr Sharman conceded there may be some pain specialists who don’t accept the condition. However, in his view they are hard to find.[32]
[32] Transcript, 93.
Dr Sharman undertook nerve conduction studies with the Applicant upon the request of Dr du Plessis. During his evidence at the hearing, he provided the following explanation of nerve conduction testing:
“[T]he tests are neurological tests usually done by a neurologist where they place electrodes and measure the conduction speed down nerves by connecting somebody up to a complicated piece of electrical equipment. Ad also, the (indistinct) testing function is down by putting needles into muscles and measuring muscle activity”.[33]
[33] Transcript, 88.
Dr du Plessis also requested the Applicant undertake Electromyography (‘EMG’). Dr Sharman explained that EMG involved putting needles into muscles and recording electrical activity to determine if the muscles are behaving normally.[34] Dr Sharman opined nerve conduction testing would fail to identify any problems with the small unmyelinated fibres that transmit pain, and this was a weakness of this form of testing.[35]
[34] Transcript, 88.
[35] Transcript, 89
In his report of 16 March 2018 and reproduced in following reports, Dr Sharman explained that the benefit the Applicant derived from her treatment was twofold:
“…I believe that continuing the current treatment is “alleviating” her compensable condition in accordance with the SRC Act by both relieving symptoms and maintaining her function. It is clear that her condition will not improve given the nature of the original injury and to expect that an improvement in function can be objectively demonstrated due to treatment indicates a misunderstanding of the medical facts relating to her condition”.[36]
[36] Exhibit 1, 116.
In his report of 16 March 2018, he also made the following comment about the use of the Clinical Framework:
“While you refer to the "Clinical Framework for the Delivery of Health Services", this document is not legislated and can only be a guide setting out some useful principles. No guide can cover all types of medical conditions, particularly where a permanent neurological injury occurs.
It is also worthwhile pointing out to objectively demonstrate functional gain or lack of deterioration in accordance with the Clinical Framework document referred to above would incur significant and costly resources, beyond the scope of what a medical practitioner can undertake in routine clinical reviews. For example, a physiotherapist would be the most appropriate practitioner to conduct and document serial measures of joint range and muscle strength using accepted protocols to ensure an adequate level of reliability and reproducibility. Even with such "objective" measures, chronic pain patients often experience variability in their symptoms and function day to day that might obscure long−term trends”.[37]
[37] Exhibit 1, 112.
In his 15 May 2020 report where he commented on Dr du Plessis’ report, Dr Sharman concluded:
1. Dr du Plessis omits any mention of an important phenomenon in chronic pain i.e. the role of neural sensitization. This phenomenon is accepted almost universally within the pain medicine specialty. See my further discussion below about the evidence in relation to Ms Wells’ case.
2. Dr du Plessis was aware of first rib excision surgery but does not discuss its potential role as a potential causative factor in her ongoing pain disorder. He gives more weight to factors unrelated to her claim.
3. Dr du Plessis refers to “non-organic” findings without any discussion about the meaning of that term, the limitations of that concept or provide confirmatory evidence of a “non-organic” disorder.
4. Dr du Plessis has reached a conclusion about the absence of any true functional deficit without any independent information about the extent of any symptoms or functional limitations e.g. a verifiable account from a witness.[38]
[38] Exhibit 5, 7.
In contrast to the opinion of Dr du Plessis, Dr Sharman opined there to be “substantial evidence of a functionally-significant pain disorder”:
“… as evidenced by her consistent reported symptoms, a potential mechanism of initial nociception (onset of pain with sustained upper limb activity followed by invasive surgery i.e. first rib excision, in the region of the brachial plexus), the absence of any diagnosed psychological or psychiatric disorder to explain her reported pain, the observations of her family and treating practitioners and the current evidence of altered sensation indicative of a neural sensitization process. Her temporary symptomatic response to massage and acupuncture is further evidence of a symptomatic pain disorder”.[39]
[39] Exhibit 5, 8.
Dr Francis
Dr Francis gave oral evidence at the hearing and wrote several certificates and reports dated 22 February 1989, 20 April 1994, 15 February 2020, which were tendered as part of the T-documents, and one report dated 7 August 2022 which was tendered in evidence.[40]
[40] Exhibit 10.
He described the Applicant’s condition in the following way:
“The symptoms started peripherally and intermittently and then progressed more proximally in association with a neural sensitisation process of her functional thoracic outlet syndrome”.[41]
[41] Exhibit 10.
At the hearing Dr Francis was able to explain the relationship between functional thoracic outlet syndrome and neural sensitisation. He stated:
“That’s a process of neural sensitisation. It’s a similar phenomenon: it starts peripherally, exactly as I’ve said; you get neural sensitisation; and because the most sensitive (indistinct) are the unmyelinated c and delta fibres, which are the fibres that specifically transmit the message of pain, the symptoms aren’t painful. They’re not anything else. So people talk about thoracic outlet syndrome, it’s a range of symptoms starting with pain; you can then develop further neurological deficit with weakness and wasting and reflex changes; you can get vascular changes. This process, which is why I call it a functional thoracic outlet syndrome”.[42]
[42] Exhibit 10.
At the time of the hearing, Dr Francis had been involved in the management of the Applicant’s condition for an extended period. Dr Francis agreed with Dr du Plessis that the Applicant’s symptoms are consistent with neuropathic pain. Unlike Dr du Plessis, Dr Francis saw little utility in nerve conduction studies or EMG studies, because these tests would not capture the unmyelinated C and A deltoid fibres that were associated with the detection and transition of the pain message.[43]
[43] Exhibit 10.
In Dr Francis’ opinion, it was unsustainable to suggest that the Applicant had not been diagnosed. He stated:
“She presented with neuropathic pain features. She had postural abnormalities, She has positive brachial plexus stretch tests. She had features of somatosensory dysfunction (even before these were well documented and an appropriate examination technique had been formalised)”.[44]
[44] Exhibit 10.
Like Dr Sharman, Dr Francis was of the view that somatosensory testing could provide a clinical assessment of the Applicant’s condition.[45]
[45] Transcript, 139.
Dr Francis agreed with an assessment by Professor Barnsley referred to in Dr du Plessis’ report:
“Accepting that this is an accepted work-related condition, her current condition is persistent neuropathic pain in the arm as a consequence both of the pre-existing thoracic outlet syndrome and due to nerve injury, scarring or irritation occurring at the time of surgery in 1989 and has left her with diffuse neuropathic pain in the arm with some sympathetic features, that is, the swelling. erythema (redness) and altered sweating‘ She therefore could also be describing having an incomplete complex pain syndrome Type II”.[46]
[46] Exhibit 10.
Dr du Plessis
Dr du Plessis examined the Applicant on 19 November 2018 and wrote a report dated 12 December 2018,[47] followed by a supplementary report on 7 August 2019.[48] In his 12 December 2018 report, he canvassed the Applicant’s history of diagnoses and symptoms. Dr du Plessis opined that although the Applicant had received multiple diagnoses, none have been established. He commented on the report of Dr Francis dated 18 March 1994:
“It is clear that at this stage there was no diagnosis yet established in the case of Ms Wells and according to Dr Francis massage was only giving her “short-term” relief. It would have been more important to establish a correct diagnosis and give appropriate treatment at the time. Short-term relief is not any value, particularly when there is no confirmed diagnosis. This scenario may suggest that the symptoms were non-organic in nature”.[49]
[47] Exhibit 12.
[48] Exhibit 13.
[49] Exhibit 12, 10.
He further opined that because the Applicant was receiving weekly massages throughout the early 2000s and continued to experience recurring postural pain and pain, the massage therapy was “of absolutely no value”.[50]
[50] Exhibit 12, 11.
Dr du Plessis commented on the fact that Dr Francis had identified the Applicant’s treatment as a form of palliative treatment and “necessary to maintain her optimal outcomes despite the permanent problem that she has”. He opined:
“Palliative treatment can only be given when a definitive diagnosis has been confirmed and the condition is not amenable to treatment. I have up to this stage while reviewing the documents not found an actual diagnosis which has been confirmed by investigations that have shown up evidence of pathology”.[51]
[51] Exhibit 12, 13.
Dr du Plessis noted that although he had not been provided with documentation about the Applicant’s fall down concrete stairs, he considered this to be significant. He described her injury as a “serious brain injury”, noting that she was in intensive care for a three-week period.
In 2017, the Applicant was referred to Dr Sharman in relation to a “fractured shoulder injury” that resulted in the removal of the first rib and resulted in persistent pain in her left arm. Dr du Plessis noted that like Dr Francis, Dr Sharman perceived value in the current treatments undertaken by the Applicant, noting Dr Francis’ sound reasoning. Dr du Plessis opined:
“It seemed to be inconsistent that there was rarely any question about the use of medication for symptom control, when it could be equally well argumented that the use of medication in chronic pain is palliative, and its long-term use did not result in measurable therapeutic benefit, yet medications carried substantial risk of negative consequences”.[52]
[52] Exhibit 12, 19.
Dr du Plessis summarised the varied diagnoses the Applicant received on medical review certificates between 2009 and 2015:
“I noted in the medical review certificates that were signed on 8 May 2009, no specific diagnosed condition was entered. Dr Francis purely wanted the “massage therapy for symptomatic relief” and the “osteopathy for acute episodes of pain” and the “acupuncture for neuropathic pain”. The compensable condition was said to be “nerve root and plexus disorder”.
In a further medical review certificate it was stated that she had neuropathic pain of her left arm due to repetitive strain injury. In yet a further medical certificate Dr Francis indicated that the diagnosis was brachial plexus disorder – thoracic outlet and nerve root – pain/fatigue/weakness left arm the symptoms worse with activity.
The medical certificate dated 10 July 2013 gave the diagnosis as brachial plexus disorder – thoracic outlet and nerve root pain/fatigue/weakness of the left arm that was worse with activity. This is also mentioned in the diagnosis in the report signed 20 May 2015”.[53]
[53] Exhibit 12, 21.
With respect to the Applicant’s diagnoses, Dr du Plessis said in summary:
“I note the big issue that requires to be addressed is whether there is any value in continuing with massage therapy, hydrotherapy and acupuncture in the case of Ms Wells. The answer in its simplest form is that there is no indication to continue therapy that has had no sustained positive effect in 34 years after her reported development of symptoms. I however have to clarify this by stating that I do not know what condition is being treated.
The first condition that was said to have been present in 1984 was that of symptoms related to a repetitive strain injury. However repetitive strain injuries recover rapidly when the factors that cause the repetitive strain are eliminated and this occurred in the case of Ms Wells when she stopped working in 1985. Thus I would have expected her symptoms to have recovered at that stage and there would be no reason why she would have ongoing symptoms as a result of repetitive strain injury (RSI) that occurred more than 34 years ago.
What complicates the matter even further is that activities she was doing were not activities that are recognised to cause repetitive strain symptoms. Her physical activities were clearly not that physical nor repetitive as to the cause injury.
The second diagnosis which was put forward was that she had a thoracic outlet syndrome which was producing a “writer’s cramp-type problem”. Firstly, it is important to recognise that writer’s cramp is caused by focal dystonia which is a cerebral condition and not the result of writing or typing too much. Secondly, she does not show any features that are typical of writer’s cramp, namely features of focal dystonia which is a very easily recognisable condition when present.
My reading of the reports confirm that at no stage was the diagnosis of thoracic outlet syndrome ever confirmed. There were no tests results reported in any of the documents which confirm that she had a thoracic outlet syndrome. There is also significant controversy whether this condition actually exists”.[54]
[54] Exhibit 12, 23.
Dr du Plessis highlighted how the lack of confirmed clinical diagnosis to account for her pain suggested the pain was purely subjective.[55] He further noted that there was no evidence that the Applicant’s condition was improving by undertaking treatments, and this suggested there was no indication to continue the treatments.[56] He also raised concern about the Applicant’s failure to disclose the major accidents she had been in, including two car accidents and her major fall. Dr du Plessis indicated he would like the Applicant to try analgesic medications as a possible form of relief and noted her failure to do so in the past when complaining of severe pain.[57]
[55] Exhibit 12, 24.
[56] Exhibit 12, 24.
[57] Exhibit 12, 25.
CONTENTIONS
The Applicant relied on the opinion of Dr Francis and Dr Sharman to contend:
(a)the Applicant suffered a nerve root and plexus disorder (unspecified) on or about 11 May 1984;
(b)the Applicant continued to receive a medical treatment for that injury within the definition of the SRC Act as at 20 February 2018 when Comcare refused ongoing liability for treatment; and
(c)it was reasonable for the Applicant to obtain the treatment because the therapeutic benefit justifies the expense.
The Applicant contended that the treatment met the principles of the Clinical Framework because:
a) The effectiveness of the treatment is demonstrable and effective in that without the treatment the Applicant’s pain levels increase and her level of functioning decreases;
b) The treatment achieves a biopsychosocial benefit in enabling the Applicant to carry out her activities of daily living and undertake part-time work;
c) The treatment empowers the Applicant to self-manage the effects of the injury;
d) The treatment assists the Applicant to optimise her function and participation in physical activity, prevents deterioration of the Applicant’s condition and maintains her level of function;
e) The efficacy of the treatment is supported by reviews on the Cochrane database.[58]
[58] Applicant’s Statement of Facts, Issues and Contentions, [13].
The Respondent relied on the opinion of Dr du Plessis and contended:
(a)the Applicant no longer suffers from a compensable injury; and
(b)the treatment the Applicant received is not a medical treatment within the definition of the SRC Act because it is not being obtained in relation to any compensable condition; and
(c)in the circumstances it is not a reasonable treatment.
The Respondent contended that even if it were found the treatment was obtained in respect of a compensable injury, it would not be reasonable because:
“…the long-term provision of massage, acupuncture and a gym program is not in accordance with the Clinical Framework due to significant cost, the debatable physiological benefit demonstrated through available research evidence and the lack curative purposes”.[59]
[59] Respondent’s Statement of Facts, Issues and Contentions, [50.5].
LAW
This application for review deals with the Respondent’s present liability for the treatment of an injury for which the Respondent accepted liability in 1984 under the Compensation (Commonwealth Government Employees) Act 1971 (“CCGE Act”). That legislation is superseded by the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”).
The Decision Under Review is a reconsideration determination relating to the Respondent’s present liability for the medical treatments being received by the Applicant. The Decision Under Review was based upon relevant sections of the SRC Act, and I note that as a result of the transitional provisions contained within the SRC Act, any liability for injury accepted under the CCGE Act is continued under the SRC Act. Section 124(1) of the SRC Act states:
(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.
Section 16(1) of the SRC Act provides:
(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.
Note: Compensation is not payable under this subsection in relation to certain claims (see section 119A).
Section 4(1) of the SRC 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) dental treatment by, or under the supervision of, a legally qualified dentist; or
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g) treatment and maintenance as a patient at a hospital; or
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i) any other form of treatment that is prescribed for the purposes of this definition.
Case Law
The Tribunal was referred to authorities that considered the meaning of “injury” within s 4(1) of the SRC Act:
Military Rehabilitation and Compensation Commission v May
The Respondent contended that Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (‘May’) supported a contention that the Applicant’s condition is not compensable on the basis that the Applicant had only established subjectively experienced symptoms rather than an accompanying physiological or psychiatric change. Both parties accepted that in relation to claims in respect of an injury (in the primary sense of that word), establishing physiological or psychiatric change was necessary.
The Respondent submitted that “no logical reason exists for distinguishing injury and ailment” and so the requirement outlined in May applied to disease claims. By contrast, the Applicant contended that May was authority for the proposition that the requirement to establish a physiological or psychiatric change was only necessary where an applicant claimed they suffered an injury (in the primary sense of that word). In this case the Applicant claims compensation in relation to a disease.
At [9] to [10] the majority (French CJ, Kiefel, Nettle and Gordon JJ) said (excluding references):
9. Mr May did not contend that he suffered a "disease" within the meaning of par (a) of the definition of "injury" in s 4(1) of the Act. Rather, he claimed he suffered an "injury (other than a disease)" within par (b) of the definition of "injury" in s 4(1) of the Act.
10. This appeal concerns the proper construction of the phrase "injury (other than a disease)" in par (b) of the definition of "injury" in s 4(1) of the Act. That question of construction is determined by reference to the text, context and purpose of the Act.
In separate reasons for decision, Gageler J agreed with the determination of the majority that there was a need to identify some underlying physiological occurrence to justify the finding of a physical injury but also observed, in respect to considering the sufficiency of evidence of injury, at [80] that:
The Full Court was right to point out in the decision under appeal that the Act and the case law do not "preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion" and to observe that "[w]hether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal's satisfaction on the evidence in each particular case". But the Full Court was wrong, in my opinion, to infer that the Tribunal proceeded on a different basis. (citations omitted)
These passages both suggest that to the extent that the High Court was laying down essential criteria for the establishment of an injury (as defined in s4(1)), those criteria applied to injuries (in the ordinary sense of that word) rather than ailments. To the extent that there was doubt about that question, it was resolved by the Full Court recently in Wuth v Comcare [2022] FCAFC 42 (Wuth).
Wuth and Comcare
Wuth provides further clarification on the meaning of “injury” in the context of s 4(1) of the SRC Act.
In Wuth, the Full Court considered whether the requirement for there to be evidence of an identifiable physiological change in the case of an injury (other than a disease), also extended to ailments for the purposes of determining whether an applicant suffered an injury as defined in s 4(1) of the SRC Act.
The Full Court held that May had established no such precedent, and that the requirement for an “identifiable physiological change” was limited to the establishment of an “injury (other than a disease)” in the second limb of s 4(1) of the SRC Act.[60]
[60] Wuth v Comcare [2022] FCAFC 42, [104].
This clarification of the precedent established in May is relevant to my finding in this matter because the Applicant contended the injury she continues to suffer from is a “disease” within the meaning of injury in s 4(1) of the SRC Act, and it is the same injury for which compensation was initially claimed.
The Respondent, by contrast, contended the Applicant no longer suffered from a compensable injury because the medical evidence before the Tribunal failed to identify a physiological change in her current condition. This was premised on the basis that May made an identifiable physiological change a prerequisite for a compensable injury, no matter which sub-set of “injury” was relied upon.
In view of the decision of the Full Court in Wuth, I accept that the presence of an identifiable physiological change is not a prerequisite for a finding that the Applicant is suffering from a “disease” within the first limb of the definition of injury in the SRC Act.
It was accepted in Wuth that the definition of “disease” within the first limb of the definition of injury in the SRC Act:
“carries a defined meaning” requiring that there be an ailment or aggravation of an ailment that “was contributed to in a material degree by the employee’s employment. What is required is that employment be a material contributing factor, and not merely a temporal nexus”.[61]
[61] Wuth and Comcare [2022] FCAFC 42, [87].
Howard and Comcare
It was submitted by the Applicant that even if I found she was no longer suffering from the accepted condition, her chronic pain would be compensable as a secondary condition originating from the accepted condition. The Applicant referred the Tribunal to the case of Howard and Comcare [2019] FCA 1031 (‘Howard’) in support of this contention.
In Howard, the Respondent accepted a claim for injuries arising from a compensable accident in 2006. In 2015 the Respondent determined that the Applicant no longer suffered from the effects of the 2006 injury, and that she was no longer entitled to compensation for medical treatment under s 16 of the SRC Act. The Applicant applied to the Tribunal to review the determination. Perry J set out in her judgement the conclusions of the Tribunal at first instance at [25]–[27]:
25. In a pivotal passage at [37] of its reasons, the Tribunal found that:
Having regard to the medical evidence, I make the following findings, on the balance of probabilities. Ms Howard suffered soft tissue injuries in the 2006 accident. The effects of those injuries resolved within a few months. She developed a chronic pain syndrome secondary to the injuries she suffered in the 2006 accident. (emphasis added [by Perry J])
26. In making those findings, the Tribunal concluded at [38] that:
• Dr Vecchio says that soft tissue injuries, like those that Ms Howard suffered in the 2006 accident, would have resolved within six months; Dr Paul says they would have resolved within three months.
• Dr Coyle (who saw Ms Howard almost two years after the 2006 accident – by which time, I have found, the 2006 injuries had resolved) thought her condition was attributable to the 2006 accident, but thought it unlikely that the 2006 accident would have any permanent effects, and expected that her injuries would resolve.
• None of the MRI or CT scans, or nerve conduction studies, has revealed any pathology attributable to the 2006 accident that could explain her current condition.
• None of the medical experts suggested a mechanism by which the 2006 injuries could continue to cause Ms Howard’s current condition, although Dr Gorman says that people can display ongoing pain even though there is no organic pathology to explain it.
• I have not made any finding about an intervening cause of Ms Howard’s current condition – something that might have happened since the 2006 accident to cause similar symptoms. I do not need to make such a finding, especially given that I have not found that the effects of the 2006 injuries continued substantially unchanged.
• I have not made any finding that Ms Howard suffers from a psychological condition, noting that none of the medical experts has relevant expertise.
27. The Tribunal found as a result that the applicant did not continue to suffer the effects of her 2006 injuries…
Her Honour then considered the meaning of injury under the Act at [28]-[36] and referred to the decision of the High Court in Canute v Comcare [2006] HCA 47 (‘Canute’). Her Honour observed at [33] that in Canute the High Court:
“…held that the term “injury” in the Act “is not used in the Act in the sense of ‘workplace accident’. The definition of ‘injury’ is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body”: Canute (HCA) at [10] (the Court) (emphasis added [by Perry J])”.
Her Honour continued at [34]-[36]:
34. The High Court held that the majority of the Full Court of the Federal Court had therefore erred in holding that the definition of “injury” should be limited to primary injuries and excluded consequential or secondary injuries. Specifically, the High Court held that:
34. Reduced to its essentials, the conclusion of the Full Court majority depended upon the proposition that:
“the policy of [the Act] seems to require such an injury to be treated as an aspect of the impairment created by the initial injury.”
It is clear from the context that what was being referred to was what the majority described as a “consequential injury”, a notion supported by Comcare in terms of “primary” and “secondary” injuries. Comcare’s case depends upon confining the meaning of “injury” to exclude such “consequential injuries”. However, there is no foundation in the Act for any such distinction between “an injury” and a consequential or secondary injury. Neither of these qualifiers finds any expression in the Act. The Act speaks exclusively in terms of “an injury”.
35. It follows, as the applicant submits, that “[a] secondary injury is no less an ‘injury’ for the purposes of the [Act] then [sic] is its primary progenitor” (applicant’s submissions dated 27 February 2018 at [14]).
36. As is implicit in Canute (HCA), the Act is intended to provide for and accommodate the evolving nature of injuries. As Conti J held in Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253 (Heerey and Dowsett JJ agreeing at [12] and [13] respectively):
57. ... The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer.
Her Honour observed in Howard at [47] that:
“…it is apparent that the Tribunal must have erred in its understanding of the concept of an “injury” under the Act because its finding at [37] [which are set out above] should have led it to conclude that the requisite causal connection was established between the applicant’s chronic pain syndrome and the accepted primary injury”.
She then concluded at [61] that:
“As I have indicated, these matters suggest that the Tribunal failed to appreciate that medical conditions like chronic pain syndrome, which evolve out of primary injuries, are just as much an injury for the purposes of the Act as the primary injury. This explains the Tribunal’s focus upon whether organic or psychological injuries directly arising out of the 2006 accident provided an explanation for the applicant’s chronic pain syndrome, which it accepted at [18] had been experienced by her ever since the 2006 accident at varying levels primarily in her upper neck and shoulder blades. However, the correct position under the Act is that it sufficed if the chronic pain syndrome was caused by the first injury, as the Tribunal accepted in finding as a matter of fact that the chronic pain syndrome was secondary to the injuries suffered in the 2006 accident in line with Dr Paul’s evidence. This error is, with respect, analogous to that made by the Tribunal in Canute which treated the concept of “injury” as co-extensive with the workplace incident save that here the Tribunal appears to have treated the concept of “injury” under the Act as co-extensive with the primary injury”.
The matters set out above are supportive of liability where an original injury evolves into a pain condition. At one stage, the Respondent submitted a jurisdictional issue arose because the original injury is conceptually distinct from the subsequent pain condition but in Ellison vComcare [2022] FCA 95 this type of matter was approached to give appropriate flexibility, and I decline to draw a jurisdictional distinction between the injury as originally suffered and the ailment in the form of the pain condition that subsequently developed. See Murphy J at [144]:
“Treating the broader claim as being properly before the Tribunal does no harm to the “orderly process of administration contemplated by the Act” (Abrahams at [16]). The orderly process of administration contemplates “progressive and evolving decision-making” in the light of subsequent events and circumstances: Hannaford at [57]. In the present case the subsequent circumstances are that, over time, the medical opinions relating to the nature and aetiology of Mr Ellison ’s condition evolved. As I have said, Comcare had notice of those changes of medical opinion and had a fair opportunity to properly investigate the claims raised by them. In the circumstances of the present case, it is difficult to see what more Mr Ellison was realistically required to do to allow Comcare a proper opportunity to investigate his claim and for its orderly processing”.
If I find the Applicant does continue to suffer from a compensable injury, it follows that I must then consider the reasonableness of any treatment she receives for that injury.
The question of the reasonableness of medical treatment obtained in relation to the injury is also informed by the Clinical Framework. This policy document outlines five principles for the provision of health services to injured people including:
1. Measure and demonstrate the effectiveness of treatment
2. Adopt a biopsychosocial approach
3. Empower the injured person to manage their injury
4. Implement goals focused on optimising function, participation and return to work
5. Base treatment on the best available research evidence
The relevance of the Clinical Framework as a measure of the objective reasonableness of a treatment was recognised by the Tribunal in the matter of Evans and Comcare and I agree it provides an appropriate benchmark.[62]
[62] Evans and Comcare (Compensation) [2016] AATA 827, [22].
In Evans and Comcare, the Tribunal described the purpose of the Clinical Framework in the following way:
“The Clinical Framework guides both medical professionals and decision makers towards a multi-faceted regime of treatment. It alerts one to a range of paradigms – be they biological, psychological or social – from which individual treatments can be conceived into an implemented management plan. It talks about the achievement of functional goals, and, depending on the circumstances of a give case, eventual self-management. I cannot accept the simple approval of a treatment regime this Applicant has received on at least 906 occasions for greater that [sic] 20 years and which at best, affords her transitory or periodic relief, is what is contemplated and indeed required by section 16 of the SRC Act”.[63]
[63] Evans and Comcare (Compensation) [2016] AATA 827, [26].
The Respondent also referred the Tribunal to several other Tribunal decisions that set out the principles to be adopted when assessing the reasonableness of a treatment compensable pursuant to s 16(1) of the SRC Act. These include principles that:
(a)the Tribunal must consider all the circumstances not just whether the treatment is of value to the Applicant;[64] and
(b)while provision of temporary relief from pain through treatments will in many circumstances be reasonable, 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 Applicant.[65]
[64] Comcare v Rope (2004) 80 ALD.
[65] Chowdhary and Comcare [1998] AATA 448 (22 June 1998).
ISSUES
The issues before the Tribunal are:
(a)On 20 February 2018 was the Applicant suffering from the accepted condition?
(b)If so, at that date did she require medical treatment for the accepted condition?
(c)If so, is the treatment a medical treatment that is received by the Applicant for the accepted condition; and reasonable for the Applicant to obtain in the circumstances?
(d)On 20 February 2018 was the Applicant suffering from a secondary effect of the accepted condition and if so, does the tribunal have jurisdiction?
(e)If so, at that date did she require medical treatment for the secondary condition?
(f)If so, is the treatment a medical treatment that is received by the Applicant for the secondary condition; and reasonable for the Applicant to obtain in the circumstances?
I will now consider each of the issues set out above.
FINDINGS
As at 6 September 1984 the Respondent accepted liability for repetition strain injury of the Writers Cramp Style which was later modified to nerve root and plexus disorder (unspecified) which, despite later differing diagnoses and/or descriptions, is the accepted condition relied upon by the Applicant.[66] I accept that as at 16 September 1984, the Applicant was suffering from an accepted condition, namely a nerve root and plexus disorder.
[66] T-documents, 14.
I will deal with the question of secondary effect or any condition(s) arising from the original condition below.
As noted at [55], Dr Sharman opined that there was substantial evidence of a functionally significant pain disorder; and Dr Francis, as noted at [57], opined neural sensitisation relating to a thoracic outlet syndrome. Neither seemed to be diagnosing the Applicant as suffering from the accepted condition as at 20 February 2018.
In any event, I accept the evidence of Dr du Plessis, inter alia, as set out at [73], to the effect that any direct symptoms of the accepted condition would have resolved long before 2018, and probably within a reasonably short time after the Applicant ceased work in 1985.
Accordingly, I find that as at 20 February 2018, the Applicant was not suffering from the accepted condition. It follows that at that time she did not require medical treatment for that condition.
The Applicant and Drs Sharman and Francis relate whatever condition the Applicant now suffers (which I will refer to as her secondary condition) back to the accepted condition; but, as noted, by Dr du Plessis, there is the complication of her fall down 10-12 concrete steps in 2016. The Applicant’s representative described her current condition as neuropathic pain which is the result of the injury (that is the accepted condition) and maintained that there was an unbroken causal link between the accepted condition and the Applicant’s current symptoms.
There was a further complication as to the effect of the cases of Howard v Comcare[67] and Wuth, which the Applicant relied upon to suggest that there was no distinction between accepted condition and the secondary pain disorder, noting the Respondent contendend that without a physiological basis I could not find the pain disorder constituted a compensable condition. I was troubled by this particular aspect of the law, which is set out above, and hence had reserved this decision awaiting the Full Court decision in Wuth.
[67] (2019) FCA 1031.
Applying Howard, I accept that if there is a causative link between the accepted condition and the secondary condition suffered by the Applicant then I have jurisdiction to consider this secondary condition; and also that if I accept a causative link, then I have to consider whether the Applicant requires medical treatment for that condition.
I note that, despite what I consider to be insignificant differences, the Applicant was consistent in her reports to doctors, the Respondent and in her evidence, to the effect that the secondary condition commenced at the same time, or shortly after, the accepted condition and continued unabated thereafter.
I considered the Applicant to be a generally reliable witness and accept that as at 20 February 2018, she was suffering pain in the shoulder and arm region. I’m still uncertain as to what condition Drs Sharman and Francis opine the Applicant now suffers, but as noted at [108], it is either a pain disorder or neural pain sensitisation. For the purpose of this decision it could appropriately be described as a pain disorder. Considering the evidence set out below and in the absence of evidence to suggest a cause other than the original accepted condition, I find that the pain disorder (‘the secondary condition’) was causally linked to the accepted condition and therefore the Applicant's employment materially contributed to her condition as at 20 February 2018.
Despite the fact that the Applicant’s fall down the stairs had serious consequences, and necessitated several weeks hospitalisation and rehabilitation thereafter, I can find no evidence to suggest that it may have in some way contributed to the secondary condition. I also consider that the two car accidents, both of which occurred prior to the onset of the accepted condition, have in no way contributed to the secondary condition.
Was the treatment reasonable in all the circumstances?
I am satisfied that as at 20 February 2018, the Applicant was suffering from a pain disorder arising from the accepted condition. The Respondent is therefore liable for any reasonable medical treatment obtained by the Applicant for the secondary condition.
I now turn to consider the reasonableness of the treatments obtained by the Applicant.
I considered relevant principles in my decision in Aylett and Comcare (2019) AATA 1474 and I note the following passages from that decision:
It is open to the Tribunal to determine that medical treatment is reasonable if it results in temporary relief, see Rope and Comcare [2018] AATA 42 per Deputy President Humphries at paragraphs 35-46:
35. A number of decisions, both of the Tribunal and the Federal Court, are pertinent. In Bayani and Australian Postal Corporation [2015] AATA 342 the Tribunal considered the principles found in the Clinical Framework for the Delivery of Health Services (the Framework). It referred to the adoption by most Australian jurisdictions’ workers compensation and motor accident compensation agencies of the Framework as principles to guide health care professionals in the treatment of injury. The five principles enunciated by the Framework are:
Measure and demonstrate the effectiveness of treatment
Adopt a biopsychosocial approach
Empower the injured person to manage the injury
Implement goals focused on optimising function, participation and return to work
Base treatment on the best available research evidence
In relation to Principal One of the Framework, Senior Member Handley observed, in relation to the applicant in Bayani at [48]:
I am satisfied that had this principle been observed, it would have been obvious that the physiotherapy treatment was not providing a measurable benefit, the applicant’s health status had not changed, and functional goals, if ever established, were not being achieved. (Emphasis in original)
36. On this basis, inter alia, he concluded at [55]:
I think because there has been no real benefit to the applicant by the prolonged physiotherapy treatment that she has undertaken, there is considerable benefit in her taking responsibility for self-management of her symptoms, consistent with the Framework. I fear that the applicant has become dependent on physiotherapists who have provided her with symptomatic relief only. For her to undertake self-management will require a refocus of responsibility and a willingness to be instructed and subsequently practice and implement appropriate strategies as determined by a competent physiotherapist.
37. Similarly, in Popovic and Comcare [2000] AATA 264; (2000) 64 ALD 171 the applicant claimed for physiotherapy which provided short-term relief of his symptoms, including affording better sleep making him less depressed and less irritable on the succeeding day. The Tribunal found at [28]:
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. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic: Comcare v Watson [1997] FCA 149; (1997) 73 FCR 273 at 276 ; [1997] FCA 149; 46 ALD 481 at 484 ; [1997] FCA 149; 154 ALR 173 at 176 per Finn J. However, 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. Taking into account the whole of the evidence before us, we consider that in the applicant's case it was not in his best interest for passive physiotherapy modalities to have continued beyond 16 September 1997: Re Jorgenson and Commonwealth [1990] AATA 129; (1990) 23 ALD 321.
38. The Tribunal went on to say at [30] that the applicant’s case is one in which, while temporary relief can be reasonable treatment, it has become unreasonable...
39. In Chowdhary and Comcare [1998] AATA 448 the Tribunal commented, with respect to a claim for physiotherapy treatment under s 16 at [53]:
In particular, there is no evidence of any plan to have the physiotherapy treatment accompanied by a course of physical exercise such that the applicant might become re-conditioned and better able to cope with pain and manage a return to work. 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.
40. In Alamos and Comcare [2014] AATA 629 the Tribunal rejected a claim for physiotherapy on the basis that short-term alleviation of the applicant’s symptoms, is not medically indicated and will not provide long-term improvement in [the applicant’s] condition (at [39]). On a similar basis, the Tribunal in Durham and Comcare [2014] AATA 753 rejected a claim for physiotherapy, even though evidence had been led that this treatment, while ineffective in overcoming the applicant’s pain, did allow him to continue working.
41. In Comcare v Holt [2007] FCA 405 Mansfield J concluded that a cost/benefit analysis, of the kind recommended in Rope, ought to be undertaken. His Honour decided that there may be circumstances where therapeutic treatment will be unreasonable if alternative treatment is available for potentially similar benefit at a lower cost, and he decided that the extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant (at [26]). His Honour, added, however, that:
There may be cases... where treatment ...which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience...(at [26])
42. In Topping and Comcare [2015] AATA 525 the Tribunal at [47] rejected Ms Topping’s claim for massage and osteopathy under s 16, finding that:
...the therapies have become a ritual, fostering a dependence on her part to them which could be inhibiting her ability to self manage her condition and foster future self-reliance.
43. In another case involving the present applicant, Rope and Comcare [2013] AATA 280 (Rope No2), the Tribunal decided that Mrs Rope was entitled to compensation under s 16 in respect of the costs of attending mindfulness classes as directed by her treating doctor and supported by her psychologist. It determined that the classes fell within the meaning of medical treatment under s 4(1) and for the purposes of s 16 was reasonable treatment. Member Webb commented at [51]:
The proposition that a plan for the permanent improvement of an injury is required in order to find that a particular form of medical treatment is reasonable for an injured employee to obtain lacks merit. Medical treatment and therapeutic treatment, for the purposes of the 1988 Act, consistent with the definition of those terms in s 4(1), may include treatment to alleviate the symptoms of an injury and palliative or preventative treatments (Bashar v ComcareAustralia [2002] FCA 837 at [9]). Treatments of that kind are unlikely to appear in a plan for the permanent improvement of an injury. Some injuries cannot be permanently improved, and I do not accept that it would not be reasonable for a permanently injured employee to obtain palliative or preventative medical treatment on the basis that the treatment was not part of a plan for permanent improvement.
44. Finally, in reviewing the relevant case law, Comcare v Watson [1997] FCA 149; 46 ALD 481 should be highlighted. There Finn J observed at 484:
A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment.
The applicant [Comcare] 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, 380-381.
45. Although the principles applied in the above cases occasionally appear to be pulling in slightly different directions, some broad observations can be distilled from them regarding what will or will not be considered reasonable treatment pursuant to s 16. Generally speaking, treatment is more likely to be considered reasonable where:
its benefits are substantial and its cost is low;
it is effective, i.e. achieves measurable benefits;
it is active and promotes self-management of the compensable condition;
it is consistent with the principles in the Framework; and
it is of limited duration.
46. Conversely, treatment is less likely to be considered reasonable where:
its benefits are insubstantial and its cost is high;
it is passive and promotes dependence on itself; and
it is ongoing and indeterminate.
The Applicant’s evidence was to the effect that the massages and acupuncture reduce the pain levels for a really short period of time, which then returned to the previous level. There has been no change to the underlying level of pain despite her undergoing these treatments since 1994.
From 1994 to 20 February 2018 the Applicant had 1350 massages at a cost of almost $110,000.
The Applicant also had 32 acupuncture stations between January 2017 and February 2018.
There is no evidence of any permanent effect or improvement in the underlying condition, and some of the relevant medical evidence was as follows:
(a)Dr Francis opined that in respect of massages and acupuncture, the Applicant’s physical outcome deteriorates and her pain level escalates when not in receipt of those treatments. ( T39/84).
(b)He also opined that the treatment was effective at keeping the applicant at a functional level (T39/85) and he referred to additional symptoms if the treatment stopped (T155/10). Unfortunately, he did not identify such symptoms, and I am not satisfied that the applicant would suffer more symptoms if the treatment ceased.
(c)Dr Sharman referred to the benefits of massage, exercise and acupuncture as comparable to pain medication (T42/93).
(d)Dr du Plessis noted that there was no evidence that the Applicant’s condition has shown any sustained improvement for 34 years or transitioned into self management. (12 Dec 2018 p 24-7).
(e)He opined that there was no benefit in undertaking the massages, acupuncture and pool exercises in preference to simple analgesic medication and anti-inflammatory agents. (T174/29-40).
I note that Applicant has not trialed such medication, citing an aversion to doing so. But I do not consider that sufficient reason not to undertake such a trial, rather than persisting with her treatment regime which has resulted in no appreciable change for approximately 34 years.
It was not conceded the treatments were the most appropriate for the Applicant’s condition and I cannot find that they were, bearing in mind the Applicant refused to try analgesics and anti-inflammatory agents.
I also note that there was no evidence from the Applicant about her pain escalating absent her regime, just that her pain was reduced for a relevantly short period of time before returning to its usual level. I also found the Applicant’s evidence somewhat vague as to the precise effect of the treatment apart from a temporary reduction in pain. She noted the massages as balancing her left side,[68] acupuncture released tension[69] but made no permanent change in any way,[70] and exercising in the pool gives her the opportunity to exercise her legs by walking but it does not relieve any of her pain.[71]
[68] Transcript 53
[69] Transcript 66.
[70] Transcript 53.
[71] Transcript 68.
Applying the principles as set out above, I find the following:
(a)The Applicant receives limited benefit from the treatments which have cost a substantial amount of money.
(b)The treatments have not been affective in achieving overall dimunition of the pain disorder.
(c)The treatments have caused no change in the Applicant’s condition in over 30 years, and have not promoted self management of the compensable condition. The Applicant has refused to engage or attempt alternative measures, including analgesics and anti-inflammatory agents.
(d)Any relief provided by the treatments is of very limited duration.
(e)There is little in the treatments undertaken that is consistent with the principles in the Clinical Framework.
(f)The treatments promote dependence upon themselves and are ongoing, with no likely final determination.
Accordingly, I find that it was not reasonable for the Applicant to receive or undergo the treatments, even if medical treatments, in all the circumstances.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President
.................[sgd].......................................................
Associate
Dated: 22 June 2022
Date(s) of hearing: 23-24 March 2021, 24 May 2021 Counsel for the Applicant: Mr Richard Grueber Solicitors for the Applicant: Ogilvie Jennings Counsel for the Respondent: Mr Joe Lenczner Solicitors for the Respondent: Australian Government Solicitor
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