WOOLLAMS and PATRICK SHIPPING PTY LTD
[2010] AATA 255
•13 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 255
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0558
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL WOOLLAMS Applicant
And
PATRICK SHIPPING PTY LTD
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate13 April 2010
PlacePerth
Decision The Tribunal affirms the decision under review.
..............sgd S D Hotop........
Deputy President
CATCHWORDS
COMPENSATION – seafarers – applicant injured in course of employment in January 2003 – respondent accepted liability to pay compensation to applicant for injuries suffered in January 2003 – respondent subsequently paid compensation to applicant for medical treatment including chiropractic treatment obtained by him for injuries – respondent determined that compensation not payable to applicant for chiropractic treatment obtained from December 2007 – not reasonable in circumstances for applicant to obtain chiropractic treatment for injuries from December 2007 to date – decision under review affirmed
Seafarers Rehabilitation and Compensation Act 1992 (Cth), s 28
REASONS FOR DECISION
13 April 2010 Deputy President S D Hotop
Dr J Chaney, MemberIntroduction
1. Paul Woollams (“the applicant”) was injured in the course of his employment with Patrick Shipping Pty Ltd (“the respondent”) as a Chief Integrated Rating on board the vessel M/V Kimberley on 13 January 2003. He claimed compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”) and the respondent subsequently accepted liability under the Act to pay compensation to him for “injuries to [his] upper limbs”.
2. The applicant has obtained various forms of medical treatment, including chiropractic treatment, for the abovementioned injuries and he has received compensation for the cost of such treatment pursuant to s 28 of the Act.
3. On 12 December 2007, however, a determination was made on behalf of the respondent that, as at 19 December 2007, the applicant was not entitled to receive compensation, pursuant to s 28 of the Act, for the cost of chiropractic treatment. That determination was affirmed by a “reviewable decision” made on 24 December 2008.
4. The applicant has applied to the Tribunal for review of the reviewable decision dated 24 December 2008.
The Issue and the Tribunal’s Determination
5. The issue for the Tribunal’s determination is whether compensation is payable to the applicant, pursuant to s 28 of the Act, for the cost of chiropractic treatment obtained by him for his relevant injuries on and from 19 December 2007 to date, and, if so, whether compensation is payable to him for expenditure incurred by him in making journeys for the purpose of obtaining such treatment.
6. For the reasons which follow, the Tribunal has determined that compensation is not payable to the applicant, pursuant to s 28 of the Act, for the cost of chiropractic treatment for his relevant injuries, on and from 19 December 2007 to date.
The Relevant Legislation
7. Pursuant to s 26(1) of the Act, compensation is payable to an employee who suffers an “injury” (as defined in s 3) that results in death, incapacity for work, or impairment. Section 28 of the Act relevantly provides:
“ 28(1) If an employee:
(a)suffers an injury; and
(b)obtains medical treatment for the injury, being treatment that it was reasonable for the employee to obtain in the circumstances;
compensation is payable for the cost of the medical treatment, of such amount as is appropriate, having regard to the nature of the treatment.
…
28(6) Subject to subsection (7), if compensation in respect of the cost of medical treatment is payable under subsection (1), the employer is liable to pay to the employee an amount of compensation in respect of expenditure reasonably incurred by the employee in doing either or both of the following:
(a)making a journey, necessary for the purpose of obtaining the treatment, from the place in Australia where the employee is residing to the place where the treatment is to be obtained;
(b)remaining, for the purpose of obtaining that treatment, at a place to which the employee has made a journey for that purpose.
…”
The phrase “medical treatment” is extensively defined in s 3 of the Act and that definition relevantly includes:
“(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered as such under the law of a State or Territory; …”
The Evidence
8. The evidence before the Tribunal comprised the “T Documents” (T1–T194, pp 1–457) lodged with the Tribunal by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and the following evidence presented at the hearing:
·Exhibits A1–A6 tendered by the applicant;
·Exhibits R1–R8 tendered by the respondent; and
·the oral evidence of the applicant, and of Dr John Suthers and Mr Philip Hardcastle who were called by the respondent.
The Applicant’s Evidence
9. The applicant adopted, for the purposes of his evidence, a letter, dated 22 December 2007, whereby he requested a reconsideration of the abovementioned determination of 12 December 2007. The contents of that letter are as follows:
“ I am writing, in response to your letter dated the 12th of December 2007 – claim number 991320101669.
The injury I sustained occurred due to Captain’s orders as a result of a last minute cargo plan change. This change was to move the ships gear from hold space. This job was, initially scheduled, to be completed using a crane. As this was not possible I moved the ships gear manually.
I was one hundred percent fit before this shift as per my two year ASMA medical.
I reported to the Captain that I had pain at both elbows and shoulders. My right shoulder sustained a 70% tear to the right shoulder SS tendon. This was surgically repaired in 2003. I then had ACTR surgery on my left hand, which gave little relief. The same CTR surgery was performed on my right hand. Followed by open CTR on my left hand with little relief. In 2005 my left shoulder was operated on. At that time I had not experienced any significant relief on the left hand side.
To date my left arm from my neck to my fingers is in continual pain. My right arm experiences pain at the elbow and shoulder when used. I take Gabapentin, a painkiller, regularly to relieve pain.
I have been doing an exercise program since 2004 as per my injury management plan and will happily participate in others.
I am currently working fifteen hours per week for a company named NSA. I perform light duties, which include some manual tasks. This work limits the use of my arms to four hours per day. I have found that using my arms for longer, causes the symptoms to worsen. This apparently, is due to nerve damage in my neck sustained during the work incident in question.
I have tried many treatments to ease my injury and by far the most effective has been regular chiropractic treatment. I continue to try and find an appropriate practitioner closer to home as it I (sic) do not enjoy driving three hours for treatment.
As for the ulnar neuropathy, the specialists have performed three surgical operations to correct the problem on my left hand side with little relief.
I am very happy to continue working for NSA for up to twenty hours per week if I can be reimbursed for my chiropractic treatment. I have seen several Chiropractors in the Busselton/Dunsborough area and found that they do not perform the same procedures as my Chiropractor in Perth. Please refer to the report from Doctor Eric Schwelm.” (T168)
10. In his oral evidence the applicant said that he has been attending Dr Schwelm, Chiropractor, in Perth for chiropractic treatment for his injury since 2004. In order to attend Dr Schwelm, he drives from his home in Yallingup, approximately 250 kilometres from Perth, and the duration of the journey is about three hours. He said that, during the journey, he stops every hour in order to relieve his pain. He added that he does not make the return trip on the same day; instead, he stops in Perth overnight, or sometimes for a few days, with family members and takes the opportunity to pick up plants and other items for the botanical work in which he is engaged, before returning to Yallingup.
11. The applicant said that he has continued to attend Dr Schwelm, and also a local chiropractor, since December 2007 (when the respondent ceased to reimburse him for the cost of the chiropractic treatment) at his own expense, and that his most recent attendances on Dr Schwelm were in January 2010 and 16 March 2010 (prior to the commencement of the hearing in this matter).
12. As regards the local chiropractor he has also been attending, the applicant said that he found that he obtained less relief from that chiropractor’s treatment than he obtained from Dr Schwelm’s treatment. The applicant explained that Dr Schwelm’s treatment includes the “sacral occipital technique” (“SOT”), although he acknowledged that the abovementioned local chiropractor had trained under Dr Schwelm in the use of that technique.
13. The applicant said that he receives most benefit from chiropractic treatment of his arms – “all parts of [his] arms from the shoulders to the finger tips” – especially his left arm. He said that he has more pain in his left elbow and forearm and that his right arm is “not too bad” except when he uses it in heavy work.
14. The applicant said that the relief he derives from chiropractic treatment generally lasts 1–2 days if he uses his arms, but if he does not use his arms it can last up to 7 days. He said that, in the period from 2004 when he has been obtaining chiropractic treatment, the cost of each session was initially in the range $50–$85 and subsequently in the range $55–$90.
Medical Evidence Relied On by the Applicant
Dr Mostyn Hamdorf
15. Dr Hamdorf is a general practitioner in the applicant’s local area. Dr Hamdorf issued the First Medical Certificate, on 24 February 2003, for the purpose of compensation under the Act for the applicant’s relevant injury (T5) and he has since continued to treat the applicant.
16. Various Progress Medical Certificates, clinical notes and reports of Dr Hamdorf are contained in the T Documents, including the following:
·a report to the respondent’s insurer, dated 26 April 2007, which states:
“…
1.Mr Woollams is suffering from pain weakness and paraesthesia arising from his left ulnar neuropathy which refers in a retrograde fashion to his neck.
2.Currently Mr Woollams receives chiropractic treatment from Schwelm (sic) from Cottesloe Chiropractic Centre and this has been directed at the symptoms arising from his left ulnar neuropathy. Mr Woollams endeavoured to a (sic) local practitioner to relieve his discomfort but as yet has been unsuccessful.
3.The treatment received thus far has been successful in helping to relieve his symptoms and it is envisaged that he would only need maintenance treatment on a monthly basis. However, if there are aggravations from the activities of normal daily living then he may need more frequent treatment.
…” (T139);
·clinical notes in the period from March 2006 to March 2009 including the following notes:
–10 August 2007 – “… getting neck pain and would benefit from chiropractic treatment …”;
–28 December 2007 – “… Needs to see a chiropractor down here who practises SOT … Has seen lots of chiropractors down here … Paul is confident that the chiropractic treatment is working and I am happy to support Paul in that regard. Anything that improves Paul’s work capacity, we will support”;
–6 March 2008 – “… Paul states that he can do no more than normal ADL [activities of daily living] without fortnightly chiropractic support”;
–7 July 2008 – “… coping with the 4 hours per day with chiropractic treatment …”;
–7 November 2008 – “to get by with normal activities needs ongoing massage, chiropractic, acupuncture … For Paul to continue with current therapy and rehabilitation will need intermittent acupuncture, chiropractic, and massage therapy …”;
–17 February 2009 – “ongoing need for chiropractic treatment which is being disputed by the insurer and not paying even to perform the normal ADLs. We accept that chiropractic treatment is not curative but helps Paul maintain his current level of activity…”. (T182, T191, T193)
17. The applicant tendered in evidence a Progress Medical Certificate issued by Dr Hamdorf on 2 February 2010 in which Dr Hamdorf expresses the following opinion:
“ It is my opinion that as from the date of this certificate the worker is fit for work as detailed in Harry Stock’s report of up hours to (sic) 20 hours per week, provided that he receives supportive chiropractic, massage and acupuncture therapy… “ (Exhibit A3)
[The Tribunal notes that the relevant report of Mr Stock is set out in paragraph 19 below].
Mr Harry Stock
18. Mr Stock is an orthopaedic surgeon to whom the applicant was referred by Dr Hamdorf in February 2003 for treatment for his relevant injury (T6). Mr Stock performed surgery on the applicant’s right shoulder in May 2003, the applicant’s right wrist in April 2004, the applicant’s left wrist in March 2005, and the applicant’s left shoulder in September 2005.
19. The applicant tendered in evidence a report of Mr Stock to Dr Hamdorf, dated 3 August 2009, which states:
“ DIAGNOSIS: Persistent cervical neck pain with radiation of pain to both upper limbs, left worse than right
Paul was referred back to me today for assessment of his neck, shoulder and upper limb pain. As I understand over the past 3 years Paul has continued to be under the auspices of workers compensation. He has been undertaking work trials as a Botanist’s offsider undertaking approximately 16 hours per week. He has not worked on the boat as a Chief IR since 2003. He has continued to have multiple ongoing symptoms including chronic cervical neck pain, radiation of pain to both shoulders and both upper limbs and numbness particularly down the left arm in the C8/T1 distribution. His symptoms seem to be maintained with a combination of chiropractor (sic), acupuncture and massage. The overall treatment has cost him somewhere in the order of $3000 per year and he has been paying this off his own bat for the past 12 months. He is on Gabapentin which seems to control his pain involving the lateral aspect of his left forearm and hand. He uses Capadex and Panadeine Forte only when needed. He is trying to refrain from the use of these.
Clinical examination today reveals he has virtually a full range of cervical spine motion without referred pain to shoulders or upper limbs. His shoulder elevation is to 170˚ bilaterally. His internal and external rotations are 90% normal. He has mild subacromial crepitus. His static strength of elevation is 5/5 on the right and 4+/5 on the left. His internal and external rotation strengths are normal. Examining his left upper limb he has aching predominantly along the medial epicondyle with repetitive work but he has a negative Tinel’s sign at the elbow, no evidence of any significant intrinsic muscle wasting. He feels numbness mainly in the ulnar 1 1/2 digits. The remaining examination was unremarkable. No current imaging is present.
I have recommended that Paul have an MRI scan of his cervical spine and repeat EMG studies to evaluate the ulnar nerve functions of both upper limbs. From a surgical point of view I think the only thing that is worthwhile looking into is whether he has significant stenosis of the ulnar nerve at the level of the elbow and if so then this would be worthwhile releasing and transposing anteriorly. Other than this I do not think he has any further surgically redeemable pathology. Paul is not keen on further electrical studies. He has already had 3 of those in the past and they haven’t really found a lot of hard pathology.
Looking at Paul on the whole I would certainly categorically state that I do not think that he is in any way fit either physically or mentally to return back as a Chief IR. He would certainly be fit for permanent alternative duties. He seems to be able to cope with up to 20 hours a week at this point in time and this may be a good starting point, and increase his hours as his symptoms dictate. I have arranged an MRI scan of his cervical spine for completion and the results of this will be forwarded to you. I have also suggested EMG studies of his upper limbs and I have asked him to discuss this with you.” (Exhibit A4)
20. The applicant also tendered in evidence a follow-up report of Mr Stock to Dr Hamdorf, dated 2 November 2009, which states:
“ As you can see from the enclosed MRI report regarding Paul there is certainly no high grade pathology that can be demonstrated throughout his cervical spine. Certainly there is no radiological evidence of osteoarthritis, spinal stenosis or intrinsic pathology of the cervical cord. There is no indication for any surgical intervention.
I cannot explain Paul’s ongoing cervical neck pain and pain radiating to the upper limbs on an anatomical basis. He certainly seems to cope well with regular physical treatments such as chiropractor (sic), acupuncture and massage. I suspect the mainstay of his long term treatment is pain management, whether it is a combination of physical management such as his treatments and gym based stretching programmes as well perhaps as pharmaceutical managements with regular simple analgesics and various pain management modalities. There is certainly no indication to suggest any need for Orthopaedic involvement.” (Exhibit A5)
Dr Eric Schwelm
21. A report of Dr Schwelm, Chiropractor, to the respondent’s insurer, dated 3 September 2007, is contained in the T Documents (T151). That report states:
“ Thank you for your request for my chiropractic opinion of your questions regarding Mr Paul Woolams. Mr Woollams came to my practice on 19th of July 2004 complaining of neck, shoulder, arm, and elbow and hand pain with associated pins and needles / numbness into his hands. He also reported chronic bilateral knee pain. He feels that these symptoms appeared as a result of an injury suffered whilst working as a seaman moving heavy cargo in January 2003.
He reported that this injury and its long-term effects began after he was instructed by his captain to manually move a load of heavy cargo, in a short period of time that normally would have needed a crane to unload. He initially reported to his GP with pain in both elbows, with numbness and a ‘nerve’ pain. The GP sent him off for a US Scan and found that he had torn his right shoulder superspinatus tendon. Over the years due to problems related to this injury, he has had a number of operations: a right shoulder repair in May 2003, a left carpel tunnel release in February 2004, and a right carpel tunnel operation in April 2004. He then had the left carpel tunnel re-operated on at the end of 2004 and a left shoulder operation in September 2005.
Examination found that he had a painful and limited range of motion in his cervical spine. Muscle hypertonicity was found mainly in the neck and thoracic area but also continuing into his lumbar spine. Both shoulders had tenderness over the glenohumeral joint indicating a possible joint bursitis (R>L) and both medial and lateral epicondyles of elbows were inflamed. His range of motion in shoulders, elbows and wrists were limited and painful and there was swelling over these joints again, right greater than left. An X-ray was taken at this time (find attached report 19 July 2007).
Working Diagnosis: Chronic, moderate nerve irritation of the cervical spine associated shoulder, arm and hand dysfunction.
A full re-examination was done on the 15th June 2007 where he still reported a number of problems, such as dizzy spells, neck and low back pain, right jaw pain, equilibrium problems, pins and needles in both hands, bilateral shoulder, elbow, arm and hand pain/problems and increased frequency of urination.
On this latest examination the cervical and lumbar spinal ranges of motion were limited and painful. Bilateral shoulder, elbow and wrist ranges of motion were found to be limited and painful. Both right and left shoulders were showing active glenohumeral bursitis and he had weak rotator cuff muscles in the right and left shoulders.
There were muscle weakness in his arms, hands and legs, including weak deltoids, biceps, opponents pollicis, gluts, psoas, rectus femoris muscles on both right and left sides. There were also some decreased reflexes in the upper body. The right hip had a decreased internal rotation, and his right SI joint had a large amount of tension pointing to a chronic pelvic twist.
I have been treating him since the 23rd July 2004 using the chiropractic adjustment, stretches, soft-tissue work and advice and over this time he has been slowly improving in his general health and function. Mr Woollams notes that he is currently being asked to do more and more physical work and the latest examination found that he is not coping structurally with this increased workload. He reports that he gets severe pain when he does any form of moderate manual labour that involves lifting, carrying or using his arms over his head. He notes decreased function at work and home due to this chronic problem. Again my working diagnosis is a chronic, moderate nerve root irritation in the cervical spine with associated dysfunction.
I will now answer your specific questions:
1. Please detail all the injuries Mr Woollams is suffering from.
Neck pain and stiffness. Right and left shoulder, arm, elbow, wrist and hand dysfunction.
2.Please detail all current treatment being received by Paul Woollams, detailing which injury the treatment is related to.
He’s currently undergoing chiropractic adjustment, soft-tissue work and getting advice on ergonomics and stretching programs. All of his treatments are dealing with his chronic spinal dysfunction and associated problems.
3.How do you feel that these particular treatment measures are benefiting Mr Woollams’ injury recovery, and what duration do you expect the treatment to be required for?
Let me break that question into two parts. First of all, I believe that Mr Paul Woollams is much improved after chiropractic treatment. His symptoms are less, his function and strength is increasing. He’s now able to do some light manual labour however this still causes him pain.
What duration would I expect the treatment to be required for? I have had this man in my care for over three years and during this period, he has had gradual improvement in his health, his spirits and his function, but I would expect him to need a lifetime of care to keep his body flexible, strong and the spinal nerves not irritated.
4.Allianz does not consider it to be reasonable that Mr Woollams is seeking chiropractic treatment in Perth (500km return trip from his home) when there is chiropractic treatment available in his local area. Please explain the difference between treatment received by Mr Woollams from yourself, and chiropractic treatment available closer to Mr Woollams’ residence in Yallingup.
I cannot tell you anything about the chiropractic care that is closer to Mr Woollams, other than they are all fully qualified practitioners. However, the technique I use is quite different from mainstream chiropractic care and is called SOT (Sacral Occipital Technique). I am one of the most senior practitioners of this technique in WA and I train other interested WA chiropractors in this complex technique.
5.Are you able to make a recommendation or referral for Mr Woollams to another treatment provider closer to his home in Yallingup?
At this stage I am unable to refer to (sic) another practitioner as there are no registered SOT practitioners in his area. However, I would expect that in time these practitioners may be coming up to Perth to train in this technique and Paul Woollams might, in the future, benefit from their care.
Any other information that will assist in the ongoing management of the claim?
I believe that this claim should be finalised immediately. I believe that this is a chronic injury that Mr Woollams will suffer from for the rest of his life. Mr Woollams reported that, in the past, his shoulders and spine would occasionally be sore as expected in his occupation. It was when he followed his captain’s orders in this hurried movement of heavy cargo in January 2003 that his body was injured. He has never been unable (sic) to recover from this injury and he has been in chronic pain ever since. Mr Woollams drives 3 hours to attend my clinic on a regular basis to keep his health improving. Mr Woollams is an honest man that has been injured and he needs to have long-term rehabilitation. I would suggest that he may never be able to do anything except very light manual labour for any extended period of time. I feel that if he were given training to pursue another line of work he may be able to live a happy and productive life.
…”
22. The applicant tendered in evidence a letter from Dr Schwelm addressed “To whom it may concern”, dated 22 September 2009, which states:
“ I have been seeing this cheerful young man for over 5 years and although he has made significant progress in his health care over this period, he continues to have chronic neck, shoulder, arm and hand pain and weakness.
My clinical diagnosis: chronic, moderate cervical nerve root irritation with associated shoulder, arm and hand dysfunction.
I suggest that Paul would be most helped if he was referred for one-on-one Pilates instruction to strengthen his pelvic and spinal musculature. I believe that a one year course of Pilates and chiropractic will have a big effect on his function and symptoms and also allow his claim to be finally finalized.
…” (Exhibit A6)
Medical Evidence Primarily Relied On by the Respondent
Mr Barrie Slinger
23. Mr Slinger, Orthopaedic Surgeon, first examined the applicant at the request of the respondent’s insurer on 5 November 2003. Mr Slinger subsequently provided reports dated 6 November 2003 (T16), 17 January 2005 (T62), 17 July 2006 (T113), and 28 August 2006 (T120).
24. Mr Slinger, in his report of 17 July 2006, referred to (inter alia) the treatment which the applicant was presently receiving as follows:
“ …
At present his treatment includes chiropractic adjustment manipulation, which he attends in Perth and has been doing so for some 12 months or so, attending usually once a month, although his chiropractor has informed him that he now wishes him to attend twice a week for the next six weeks.
In addition, he continues with exercises, including yoga, which he attends once a week at Yallingup, Pilates once a week at Dunsborough, which he pays for himself, together with Tai Chi, which he continues at home and also, he attends acupuncture once every two weeks and his acupuncturist has indicated that he should be attending once every week.
…”
In response to a request for his opinion as to whether the applicant required treatment as a result of his work injury, Mr Slinger stated (inter alia):
“ …
In respect to his physical rehabilitation, there is no reason to anticipate that continued acupuncture and chiropractic treatment will change or affect his long-term prognosis and such treatment need not be maintained on a regular basis.
I thoroughly agree with his exercise programme, continuing with yoga, Pilates and Tai Chi, to maintain his excellent generalised muscle tone and development, the emphasis being on regular stretching and strengthening.
…” (T113, pp 252, 255)
Dr John Suthers
25. Dr Suthers, Occupational Physician, first examined the applicant at the request of the respondent’s insurer on 13 November 2006, and he subsequently reviewed him on 17 October 2007 and 11 May 2009. Dr Suthers provided reports dated 13 November 2006 (T126), 17 October 2007 (T155), 12 November 2007 (T160), 27 November 2007 (T163), and 11 May 2009 (Exhibit R1).
26. Dr Suthers, in his report of 13 November 2006, noted (inter alia) that the applicant was receiving chiropractic treatment and that the applicant had told him that “with acupuncture, chiropractic and Neurontin the pains disappear” (T126, p 280). Dr Suthers ultimately expressed the following opinion:
“ For all practical purposes he has probably reached maximal medical improvement of the upper limb injuries as such.” (T126, p 283)
27. Dr Suthers, in his report of 17 October 2007, set out the applicant’s history including the following:
“ …
Since I last saw him Mr Woollams tells me that he has been improving. He says that he seems to be coping reasonably well between chiropractic visits.
…
The cornerstone of his treatment has remained with chiropractic. He drives 250km to his chiropractor once or twice a month. His therapist is keen for him to attend twice a week. Within minutes of manipulation he says that this takes the pressure off the nerves in the neck. The beneficial effect can last for a week. He has been attending Mr Schwelm since 2004. He says he has tried 4 or 5 other chiropractors in his locality without success. He tells me that the specific technique is a sacro-occipital technique which is combined with kinesiology. Mr Woollams understands that the whole of his back is out and needs regular readjustments.
…” (T155, pp 360, 361)
As regards further treatment Dr Suthers stated:
“Mr Woollams has attended extensive physical therapy. I do not believe that this is altering the natural history of the condition. The treatment is taking the form of maintenance therapy only.
I am surprised that he is unable to resource similar treatment closer to home.” (T155, p363)
Finally, Dr Suthers again expressed the opinion that the applicant had “for all practical purposes reached maximal medical improvement”.
28. In response to a request from the respondent’s insurer, Dr Suthers provided a report, dated 26 November 2007, addressing the matter of the chiropractic treatment received by the applicant. The report states as follows:
“ Thank you for your letter dated 26 November 2007 seeking a further response to the chiropractic treatment. I will address each of your questions in turn.
1.Do you believe that the chiropractic treatment (specifically Sacral Occipital Technique SOT chiropractic care) is required as a result of the work injury?
While I am not a chiropractor it would appear that SOT has been around since the 1930s. Such techniques that have proven value in any scientific evaluation will always find a place in a clinic. I expect that training in the SOT techniques is readily available in all teaching institutions, certainly in Western Australia and where necessary, the skills can be acquired and applied by virtually all qualified chiropractors.
Thus in my opinion SOT is a readily available technique that is from my understanding of talking to patients readily practised throughout most of the State anyway. Essentially full spinal adjustments are a common treatment for back pain. From the patients I see a relatively small number would have only localised adjustments.
2.Comments with regard to whether you consider the duration and frequency of the claimant’s current chiropractic treatment to be reasonable.
I am not aware that there is any proof that chiropractic of a prolonged nature is likely to affect the long term outcome under these circumstances. Rather I would view this form of physical therapy as maintenance treatment only.
In my opinion the respondent (sic) would be better off developing his own independent exercise program and freeing himself up from the medical model.
3.Comments in relation to the claimant’s 500km travel to obtain SOT treatment.
In my opinion SOT is a very old established methodology with which most chiropractors would be familiar. I would not think that it is necessary to travel significant distances beyond the local therapists in the Geography (sic) Bay area.
…” (T163, p 379)
29. Dr Suthers’ report of 11 May 2009 to the respondent’s insurer states as follows:
“ …
HISTORY
I have now seen Mr Woollams on two occasions. The last occasion on November 2007 was for a review of his chronic pain state reflected as pain in the neck, the top of both shoulders and into the left arm. There was evidence of a left ulnar neuropathy. I note that he had two operations in the left wrist and one in the left shoulder which he tells me had no impact on his symptoms. He is averse to any further surgery.
Since I last saw him he tells me that he has been getting worse. He says he has the same pain but it is now more intense.
He tells me that since my last report the chiropractic was stopped so he was been self funding it himself. He has been seeing a chiropractor locally in Dunsborough probably every month. On other occasions he makes his own arrangement to see his preferred practitioner in Cottesloe. He tells me that this practitioner also practises kinesiology and craniology. He has had about 8 or 9 appointments in the last year. Treatment is directed at the wrist, elbows and shoulders, the knees as well as the neck.
In addition to the chiropractic he has also been taking gabapentin 3 tablets a day. He says that when the pain is particularly bad this seems to help ease the symptoms. He says he finds it very helpful if he has had a massage prior to the chiropractic. He has been seeing various massage therapists over the last 18 months. Every 3 weeks he sees Mr Darryl Johnson for acupuncture. This likewise eases the symptoms. He has now attended a Bowen therapist once whom he says has identified a problem with the left pectoralis minor. He does Tai Chi every two weeks. In addition he does stretches at home.
He tells me that over the last 18 months he has had ongoing issues with pain in the arms and across the top of the shoulders. He was particularly concerned about pain over the medial epicondyle of the left elbow and numbness into the fourth and fifth fingers. He says this is eased by the chiropractic. The forearms frequently go into spasm. When the left upper limb symptoms generally flare-up he has marked weakness in the index finger. Following sessions of chiropractic he says he ‘feels heaps better’ with about 20% less pain. This relief continues until he uses the arm again, usually the next day when he goes to work.
He has continued his rehabilitation under the auspices of Worklink. He is still working 16 hours a week for a botanist rehabilitating wetlands in the South West. He travels to Busselton or as far away as Bridgetown, Denmark or Margaret River or even Perth. On a tree planting day he would plant between 20 and 200 trees depending on the soil conditions. On other occasions he is engaged in pruning, watering, garden maintenance or weed control.
Mr Woollams tells me that he has made an arrangement to see Dr Harry Stock his orthopaedic surgeon in August 2009. He is concerned about the possibility that the pain in the neck is arising from a pinched nerve and he is hoping to pursue an MRI of the neck.
In early 2009 he participated in an introductory course to MS Word and Excel. He found the use of the mouse and the pen aggravated the left hand symptoms. He is left hand dominant.
He has owned a computer for the last few years. He says that probably 3 hours a week he would spend time on the internet, facebook and emails.
PRESENT SYMPTOMS AND DISABILITIES
Mr Woollams described chronic pain and numbness affecting the upper torso. He has
· pain at the base of the neck and across the top of both shoulders, the right more than the left. This pain also spreads down the thoracic spine.
· With regard to the left arm he has generalized pain in the left shoulder spreading into the left upper limb. This is aggravated by working 4 hours of planting.
· He has intermittent left wrist pain that can cause quite marked weakness in the thumb and index finger. This has been constant for the last 5 days.
· Spasms in the extensors of the left forearm and
· ulnar neuropathy with quite dense numbness down the medial side of the forearm and into the fourth and fifth fingers. He describes a marked weakness in these fingers.
Since I last saw him he tells me that he is now about 10% worse. He says he notices this particularly while doing the work trial.
He sleeps variably.
His symptoms are aggravated by doing DIY activities especially gardening. Maintaining a sustained position as in watering aggravates his symptoms. Hanging out the washing aggravates the symptoms; manual work affects both shoulders particularly the left as well as the ulnar neuropathy which is more marked in the left elbow than the right elbow.
When he is not at work he tells me that he tries to recover. He has now done two modules of energy medicine through the International Body Talk system. He has also done other forms of alternative medicine including Chinese cupping. The energy medicine he tells me is about linking parts of the body. He demonstrated how the treatment involves tapping on the forehead as well as the chest. It produces a mind body balance.
Mr Woollams drives a car and does the shopping. He lives alone on his five acre block and is therefore responsible for his own housework. His property is a bush block and remains undeveloped.
INVESTIGATIONS
Mr Woollams tells me he has not had any specific investigations since I last saw him.
PRESENT TREATMENT
Mr Woollams has made an appointment to see his chiropractor today. He left early from this appointment. He says the chiropractic eases his symptoms for a day or two.
He attended his acupuncturist yesterday.
He resources gabapentin from his general practitioner, Dr Hamdorf.
He has taken about 6 Panadeine Forte tablets in the last fortnight.
His appointment with Dr Harry Stock has yet to be confirmed for August 2009.
CLINICAL FEATURES
Mr Woollams is 110kg. He is left handed, his posture and gait were normal. He was unable to squat more than 110˚ knee flexion.
On examination of the cervical spine he had a full range of movements of the neck but there was pain at the extremes. He had quite marked neck tenderness with wincing and tenderness down both sides of the neck, into the interscapular region and across the top of the shoulders particularly the right.
On examination of the shoulders he had a full range of movements of the shoulders. Apprehension test was negative. There was tenderness generally around the left shoulder.
On examination of the upper limbs there was numbness on the medial sides of both arms particularly the left and into the fourth and fifth fingers. There was also numbness over the thumb and index finger of the left hand. He had pan (sic) weakness in all muscle groups in the shoulder, elbow and wrist.
DIAGNOSIS
Mr Woollams has chronic pain state affecting the neck, shoulders and both upper limbs, the left more so than the right. Although there has been some clinical evidence for pathology in the shoulder it has not responded at all well to any sort of treatment including surgery. He has some evidence of a left ulnar neuropathy but does not want to have treatment for it unless he is guaranteed a successful result.
CURRENT WORK CAPACITY
Mr Woollams is currently working 16 hours a week. He tells me that he would be prepared to increase that to 20 hours a week if the insurance process would pay for his chiropractic. My estimate of his work capacity remains unchanged from my earlier report of October 2007. He is fit to work full time as a botanist’s offsider.
He is keen to return to his pre-accident duties off shore but does not see this happening in the foreseeable future. He does believe that with intensive treatment from his various forms of alternative medicine he could make a full recovery as soon as it relieves the impact that is causing the pain. I remain confident that he will make a full recovery and be fit to return to his pre-accident duties based on the symptoms, the course of the condition and the understood underlying pathology to date.
…
ONGOING TREATMENT
In my opinion Mr Woollams is not making any progress with the various forms of ongoing treatment that he is having.
He could be considered for surgery to the left elbow but he appears to be very disinterested in this.
He is very keen to have further evaluations of his neck as he feels that this could be the source of all of his symptoms. No doubt Dr Stock will address this when he sees him possibly in August 2009.
Further ongoing physical therapy of any kind is not going to change any underlying pathology and I would not recommend it. He will no doubt continue pursing (sic) it on a self funded basis.
…” (Exhibit R1)
30. In his oral evidence Dr Suthers adhered to the opinions expressed in his abovementioned reports. He also expressed the opinion that the continued use of chiropractic treatment tends to produce a dependency on that treatment and that that is undesirable.
Mr Philip Hardcastle
31. Mr Hardcastle, Orthopaedic Surgeon, conducted a clinical assessment of the applicant on 14 April 2009 at the request of the respondent’s solicitors, and he subsequently provided a report dated 21 April 2009 (Exhibit R2). In that report Mr Hardcastle, after outlining the applicant’s history and the results of his clinical assessment, answered questions asked of him by the respondent’s solicitors as follows:
“ …
4. Your diagnosis as to Mr Woollams’ condition/s.
Cervical symptoms would be considered of a mechanical nature. There are no specific adverse radiological features on the plain x-rays or CT scan reviewed.
He still has evidence of mild right subacromial bursitis but there is no clinical evidence of any rotator cuff disruption.
There are residual features still of mild ulnar neuritis, particularly on the left.
…
6.Your opinion as to the appropriateness of current treatment including the benefit that Mr Woollams is receiving and, in particular, to (sic) SOT chiropractic treatment and chiropractic treatment generally.
The main concern I have in relation to the SOT treatment is the long distance that he has to travel every three weeks, which would total about seven hours. I cannot see any specific therapeutic benefit in this and could not support its ongoing use.
…
8.Your opinion as to whether there is other treatment that Mr Woollams currently require (sic) for his condition/s and, if so:
(a) The form of treatment that you recommend.
(b) For what period of time.
(c) With what frequency.
(d)The benefit you expect that Mr Woollams will receive from such treatment.
He is having some other different treatments including massage and acupuncture, which are more for maintenance. In this situation, where there are a number of different chronic conditions and none of which have any specific pathology to warrant surgical treatment, then as a general rule maintenance is the preferred treatment of choice combined with a light exercise program.
In this situation I would recommend hydrotherapy as I would be of the opinion that regular use of upper limb weights with all of his different problems is only likely to aggravate the situation and therefore he should stay away from this type of treatment. A long term hydrotherapy program over one to two years would, in my opinion, be the best form of treatment for him. This could be done on a three to five times a week basis, dependent on his commitments, and it could be combined with his natural medicines which would be on a regular basis. I would however revisit the use of gabapentin.
It is probably worthwhile having a repeat EMG to see if he would benefit by release of the ulnar nerve at the left elbow. If surgery was to be performed on the left elbow, then this would be a one-off procedure.
I would also recommend consideration of a right subacromial injection dependent on the results of the ultrasound.
…”
32. In a report, dated 2 March 2010, Mr Hardcastle responded to further questions asked of him by the respondent’s solicitors as follows:
“ …
2.Whether Mr Woollams at the time of your examination, and particularly having regard to the report on MRI, suffered any nerve root irritation as referred to by Dr Schwelm in his report of 21 (sic) September 2009, or other (if any) and what cervical spine injury.
There has not been any evidence of nerve root compression at the times of my clinical reviews or evidence of any nerve root irritation from the MRI.
3.If Mr Woollams suffered any cervical spine injury as hypothesised by Dr Schwelm, or any other significant cervical spinal injury, please express your opinion as to the advisability of Mr Woollams’ driving every three weeks or so, to and from Cottesloe for the purposes of treatment by Dr Schwelm.
It is not my opinion there has been any injury to the cervical spine. Patients can get postural neck pain when they are in a sling for a period due to muscle symptoms, but this would not constitute an injury.
It is not my opinion that regular 3 weekly treatments are appropriate for his cervical spine. Such treatment can offer some short term relief as a maintenance type treatment but there is no evidence that it is of any benefit. This treatment has been undertaken for a protracted period of time and there does not appear to be any specific change in clinical symptomatology which would best be addressed by a regular strengthening program which can be self managed.
4.Please advise as to your view of the sacral occipital technique (SOT) and having regard to further material what is your view as to the value therapeutically or otherwise of the SOT or other chiropractic treatment for the purposes of treatment of Mr Woollams.
The only experience I have with sacral occipital technique is what is shown through the internet. There are no specific published papers that I am aware of, and certainly from my review of the technique as demonstrated and the theory behind it, it is not my opinion that there is any medical basis that this technique has anything to offer.
5.It appears that Mr Woollams is possibly being treated by the administration of SOT in respect of his left ulnar condition. Please advise:
(a)Whether SOT or other chiropractic treatment is likely to be of benefit in respect to the left ulnar condition that you diagnosed.
This is, at best, going to have a placebo response.
…” (Exhibit R6)
33. In his oral evidence Mr Hardcastle confirmed that, in his opinion, the chiropractic treatment received by the applicant would have nothing more than a “placebo effect”. Asked for his opinion regarding the applicant’s receiving chiropractic treatment locally, without having to travel from Yallingup to Perth, Mr Hardcastle reiterated his opinion that such treatment would still only have a placebo effect but he added that, if the applicant were “committed” to it, he “wouldn’t say no”. Mr Hardcastle, however, agreed with Dr Suthers’ opinion that, in the applicant’s circumstances, the continued use of chiropractic treatment tends to produce a dependency on that treatment and that such dependency is undesirable. He added that his practice in to try to make his patients more self-sufficient and he reiterated his opinion that hydrotherapy would be more beneficial for the applicant.
Analysis
34. Pursuant to s 28(1) of the Act compensation is payable to an employee for the cost of “medical treatment” (as defined in s 3) obtained for an “injury” (as defined in s 3) suffered by the employee, “being treatment that it was reasonable for the employee to obtain in the circumstances”. Although it is common ground that the respondent accepted liability under the Act to pay compensation to the applicant for “injuries” suffered by him on 13 January 2003 in the course of his employment, the relevant determination by the respondent, including a precise description of the relevant “injuries”, is, unfortunately, not in evidence before the Tribunal. A copy of the determination of 12 December 2007, whereby it was determined that, as at 19 December 2007, compensation was not payable to the applicant for the cost of chiropractic treatment, is, however, in evidence before the Tribunal (T1, p 8; T165) and the Tribunal notes that, in that determination , it is stated:
“ Paul Woollams (the Seafarer) has an accepted claim for compensation for injuries to his upper limbs, with the cause of the injuries claimed to be related to the continual handling of heavy chains for lashing on 13 January 2003.”
Likewise, in the “Section 37 Statement” (T2) made by the respondent on 24 March 2009 it is stated:
“The Applicant has an accepted claim for compensation under the Seafarers Rehabilitation and Compensation Act 1992 for injuries to the upper limbs, date of injury 13 January 2003.”
Accordingly, the Tribunal will proceed on the basis that the relevant “injuries”, for the purposes of s 28(1) of the Act, in this case are as described in the abovementioned determination, dated 12 December 2007, and Section 37 Statement, dated 24 March 2009, namely, “injuries to [the applicant’s] upper limbs”.
35. It is common ground that the respondent paid compensation, pursuant to s 28(1) of the Act, to the applicant for the cost of chiropractic treatment relevantly obtained by him in the period from 2004 to 18 December 2007. The primary matter for the Tribunal’s determination is whether compensation is payable to the applicant, pursuant to s 28(1) of the Act, for the cost of chiropractic treatment obtained by him for the relevant injuries to his upper limbs on and from 19 December 2007 to date. There is no dispute, and the Tribunal accepts, that the chiropractic treatment relevantly obtained by the applicant is “medical treatment” (as defined in s 3 of the Act) within the meaning of s 28 of the Act.
36. Pursuant to s 28(1) of the Act, compensation will be payable to the applicant for the cost of the chiropractic treatment obtained by him for the relevant injuries to his upper limbs provided that it was “reasonable” for him to obtain that treatment ”in the circumstances”. In assessing whether the chiropractic treatment relevantly obtained by the applicant was “treatment that it was reasonable for [him] to obtain in the circumstances”, within the meaning of s 28(1) of the Act, it is appropriate for the Tribunal primarily to have regard both to the evidence of the applicant regarding the nature and extent of the benefit which he derives, and has derived, from that treatment in relation to his compensable injuries, and to the medical evidence regarding the appropriateness, and the beneficial effect (if any), of that treatment in relation to those injuries.
37. The applicant’s evidence was that the nature of the benefit he has derived, and continues to derive, from the relevant chiropractic treatment is relief from pain in his arms, especially in his left forearm and elbow. As regards the extent of that relief, his evidence was that it generally lasts 1–2 days if he uses his arms, but it can last up to 7 days if he does not use his arms.
38. The relevant medical evidence by be summarised as follows:
· Dr Schwelm (who has been providing chiropractic treatment to the applicant since 2004) clearly opined that the chiropractic treatment received by the applicant has been beneficial to him in that it has decreased the pain symptoms, increased the strength, and generally improved the functioning, in (inter alia) the applicant’s upper limbs;
· Dr Hamdorf (the applicant’s treating general practitioner) accepted that the chiropractic treatment received by the applicant had helped to relieve his symptoms and was “working” and he was “happy to support” the applicant’s continuing to receive such treatment but he acknowledged that such treatment was “not curative” and served only to help the applicant “maintain his current level of activity”;
· Mr Stock (the applicant’s treating orthopaedic surgeon) said that the applicant’s “symptoms seem to be maintained with a combination of chiropractor (sic), acupuncture and massage” and that the applicant “certainly seems to cope well with regular physical treatments such as chiropractor (sic), acupuncture and massage …”;
· Mr Slinger (an orthopaedic surgeon who examined the applicant in 2003 and 2006 at the request of the respondent’s insurer) reported on 17 July 2006 that “there is no reason to anticipate that continued acupuncture and chiropractic treatment will change or affect his long-term prognosis and such treatment need not be maintained on a regular basis”;
· Dr Suthers (an occupational physician who examined the applicant at the request of the respondent’s insurer in November 2006, October 2007 and May 2009) opined as follows (inter alia):
-as at 2006–2007 the “extensive physical therapy” (including chiropractic and acupuncture) which the applicant had received was serving as “maintenance therapy only” and was not “altering the natural history” of his condition, and the applicant had “for all practical purposes reached maximal medical improvement” in respect of his upper limbs;
-the applicant would be “better off developing his own independent exercise program and freeing himself up from the medical model”;
-as at May 2009 (the applicant having told him that his pain, especially in the left arm, was about 10% worse than when he last saw him in October 2007) the applicant was “not making any progress with the various forms of ongoing treatment” (including chiropractic), and “further ongoing physical therapy of any kind [was] not going to change any underlying pathology” and [he] “would not recommend it”;
-continued use of chiropractic treatment may produce a “dependency” on that treatment and such dependency is undesirable;
· Mr Hardcastle (an orthopaedic surgeon who examined the applicant at the request of the respondent’s solicitors in April 2009) stated as follows (inter alia):
- the chiropractic treatment received by the applicant would have merely a “placebo effect” without any specific therapeutic benefit and he did not support its ongoing use, although if the applicant were “committed” to such treatment, he would not oppose it;
- a “long-term hydrotherapy program over one to two years would … be the best form of treatment” for the applicant;
- continued use of chiropractic treatment by the applicant would tend to produce a dependency on that treatment and such dependency is undesirable.
39. Having considered the relevant medical evidence, it seems reasonable, in the Tribunal’s opinion, to conclude that the only practitioner who has opined that the chiropractic treatment received by the applicant has resulted in an improvement in his physical condition (including the condition of his upper limbs) is Dr Schwelm, a chiropractor who has been providing that treatment to him since 2004. As regards Dr Hamdorf and Mr Stock, there is no evidence before the Tribunal that either of them (or, indeed, any other medical practitioner) referred the applicant for chiropractic treatment, and it seems to the Tribunal that their support for the applicant’s continuing to receive chiropractic treatment is based on the applicant’s wish to continue to receive that treatment rather than on any belief by them that that treatment has produced, or will produce, any improvement in the physical condition of the applicant’s upper limbs. On the other hand, Dr Suthers, Mr Hardcastle and Mr Slinger have clearly opined that chiropractic treatment has not produced, and will not produce, any improvement in the physical condition of the applicant’s upper limbs, and they do not support the ongoing use of that treatment by the applicant for his upper limbs.
40. The Tribunal prefers the opinions expressed by Dr Suthers, Mr Hardcastle and Mr Slinger. In particular, the Tribunal regards Dr Suthers’ report of 11 May 2009 (set out in paragraph 29 above) as comprehensive, thorough and persuasive and it accepts the opinions expressed therein by Dr Suthers and convincingly reiterated by him in his oral evidence.
41. The Tribunal notes the applicant’s evidence regarding the relief from pain in his arms which he has derived, and continues to derive, from the chiropractic treatment. The duration of that pain relief – namely, generally 1–2 days – is, however, relatively insubstantial and, in the Tribunal’s opinion, having regard to that circumstance, together with the lack of any improvement in the physical condition of the applicant’s upper limbs resulting from the relevant chiropractic treatment (as established to the Tribunal’s satisfaction by the abovementioned medical evidence), it was not reasonable in the circumstances, for the purposes of s 28(1) of the Act, for the applicant to continue to obtain chiropractic treatment for his upper limb injuries from 19 December 2007.
Conclusion
42. Having regard to the whole of the evidence before it, the Tribunal concludes that, for the purposes of s 28(1) of the Act, it was not reasonable in the circumstances for the applicant to continue to obtain chiropractic treatment for the relevant injuries to his upper limbs in the period from 19 December 2007 to date. Accordingly, compensation is not payable, pursuant to s 28(1) of the Act, to the applicant for the cost of the chiropractic treatment obtained by him for the relevant injuries to his upper limbs in the period from 19 December 2007 to date.
Decision
43. For the above reasons the Tribunal affirms the decision under review.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member
Signed:.............sgd...E Jordan...................
Associate
Dates of Hearing 16, 17 March 2010
Date of Decision 13 April 2010
Representative of the applicant Self-represented
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Sparke Helmore
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