Yeats and Comcare (Compensation)

[2017] AATA 80

Yeats and Comcare (Compensation) [2017] AATA 80 (27 January 2017)

Division:GENERAL DIVISION

File Number(s):      2015/3573

Re:Jean Yeats

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Ms S Taglieri, Member

Date:27 January 2017

Place:Hobart

1.    The reviewable decision is affirmed in respect of the liability to pay for prolotherapy treatment.

2.    The reviewable decision is set aside in respect of liability to pay for physiotherapy treatment and remitted to the Respondent for reconsideration in accordance with the recommendations of the Tribunal.

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Ms S Taglieri, Member

Catchwords

Compensation – entitlement to medical treatment expenses – phototherapy – physiotherapy – whether reasonable treatment – liability for injury accepted – compensable injuries to upper limbs, shoulders and neck – decision affirmed in respect of prolotherapy – decision set aside  in respect of physiotherapy treatment

Legislation

Safety Rehabilitation and Compensation Act 1988, ss 4(1), 16

Cases

Alamos and Comcare [2014] AATA 629
Australian Telecommunications Commission v Barker [1990] FCA 489
Commonwealth of Australia v Muratore [1978] 141 CLR
Manns and Comcare [2012] AATA 462
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Jorgensen and Commonwealth (1990) 23 ALD 321
Re Popovic and Comcare [2000] AATA 264
Smith and Comcare [2002] AATA 249
Tran and Comcare [2010] AATA 719

REASONS FOR DECISION

Ms S Taglieri, Member

27 January 2017

INTRODUCTION

1. The Applicant, Mrs Jean Yeats, was a long standing employee of the Department of Social Security, later known as Centrelink. She worked in a training role for most of her employment and she ceased employment during 2005.

1. Mrs Yeats has applied to the Tribunal to review a decision of the Respondent concerning her entitlement to medical treatment expenses in connection with injury or injuries said to have been suffered during her employment.

1. The reviewable decision is dated 2 April 2015 and the Respondent determined that Mrs Yeats had no present entitlement to compensation in respect of medical expenses, particularly prolotherapy and physiotherapy treatments.[1]

[1] T41, letter from Respondent to Applicant dated 2.4.2015, pages 106 to 108 of the T documents.

1. The ultimate issue to be determined by the Tribunal is whether the decision to no longer pay compensation pursuant to section 16 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) for prolotherapy and physiotherapy treatment received after 2 April 2015, was the correct or preferable decision.

1. The Tribunal was informed at the commencement of the hearing that there was no dispute about the Employer’s liability for the injury. Rather, the dispute was confined to whether the treatment was reasonable in the circumstances to treat the injuries for which the Employer had accepted liability.

1. During the course of the hearing, Mrs Yeats abandoned part of her application to review the Respondent’s decision of 2 April 2015. That is, she withdrew the part of her application that sought a determination that the Respondent was liable to pay for continuing prolotherapy treatment.

1. The reasons of the Tribunal below are confined to the issue of whether physiotherapy treatment was reasonable in the circumstances to treat the compensable injuries.

BACKGROUND

1. Mrs Yeats made two claims for workers compensation pursuant to the Act.

1. The T Documents filed by the Respondent only included a copy of the Claim for Rehabilitation and Compensation dated 14 May 1995, which references pain in left shoulder affecting left side of neck and use of left arm.[2]

[2] T3, pages 4 to 10 of the T documents.

1. However, it is apparent from other T documents that an earlier claim was made in respect of the right elbow/arm.  A number of medical reports included in the T documents also refer to “right lateral epicondylitis of the elbow.” Further, there are references to two claim numbers.[3]

[3] For example see T 6, page 16 of T documents and report of Dr Burke, T7 at page 18 of T documents.

1. For the purposes of the hearing, the Respondent focussed on the second claim in 1995. Although Mrs Yeats raised the existence of the earlier claim on occasions she did not argue or contend in any specific way that it was relevant to the determination required to be made by the Tribunal.

1. Despite this, the Respondent appeared to accept that there were two claims. Identification of the injuries for which liability to pay compensation was accepted is relevant to the question of whether particular treatment is reasonably required for them.

   THE EVIDENCE RECEIVED

2. The Tribunal received the T documents into evidence, and a number of other documents were tendered into evidence, many comprising of extracts/articles from medical journals or other internet publications.

1. The Tribunal also heard oral evidence from Mrs Yeats, her treating general practitioner, Dr de Burgh and Ms Kellie Wilkie, Physiotherapist. The Respondent called Associate Professor Barnsley to give evidence.

1. Associate Professor Barnsley, Dr de Burgh and Ms Willkie were all closely questioned by the parties and the Tribunal. In her Statement of Facts, Issues and Contentions, Mrs Yeats questioned the expertise of Associate Professor Barnsley and the reliability of his views. Despite this, during the hearing she did not persist with this.

1. For avoidance of any doubt, the Tribunal was satisfied of the specialist medical expertise of Associate Professor Barnsley and also of Ms Wilkie as a Physiotherapist.

1. Mrs Yeats’ evidence was to the effect that she found the physiotherapy treatment from Ms Wilkie to be particularly beneficial. Specifically, she said it assisted or improved function and movement in the upper limbs, shoulders and neck. Despite being challenged about this given that she had not had physiotherapy for several years before 2013, she maintained her evidence.

WHAT INJURIES HAD THE RESPONDENT ACCEPTED LIABILITY FOR?

1. The Respondent identifies the injury for the purposes of the issue for determination to be “overuse injury to the common extensor of both elbows and bilateral trapezius muscle strain in the upper shoulder region,” having occurred on 23 January 1995.

1. The description of injury as identified by the Respondent has been attributed to Dr Burke.[4]  It certainly is consistent with the views expressed by Dr Burke in his report of 12 September 1996.[5]

[4] See T11 at page 38 of the T documents, paragraph 2 of report of Dr Tim Stewart dated 27.1.1999.

[5] See T 7, especially page 23 of T documents.

1. However, other descriptions of the injury are included in the T documents to which the second claim in 1995 relates.

1. For example, the letter from the Respondent to Dr Burke refers to strained cervical vertebra facet joint and left trapezius muscle.[6]

[6] T6 at page 16 of the T documents.

1. Dr Stevenson expresses the view in a report of 25 November 1997, that the problem is one of “diffuse cervico-brachial pain, which appears to have occurred mostly when spending reasonably protracted period at keyboard.” [7]  He says that Mrs Yeats suffers “intermittent cervico-brachial discomfort probably due mostly to static loading and tension when sitting at a keyboard for a protracted period.” He considered that cervico brachial pain remained.

[7] T9, pages 32 and 33 of the T documents.

1. Dr Humphries identifies in a report of 31 March 1998, “a postural syndrome effecting the cervico-thoracic spine and shoulder girdle.”[8] He describes slightly kyphotic thoracic spine.

[8] T10 at page 36 and 37 of T documents.

1. Dr Stewart considered Mrs Yeats suffered from mild bilateral epicondylitis, probably work related, but also noted the differing views about diagnosis. He also observed thoracic kyphosis, but his opinion about its relationship to work is confusing. He states that the thoracic kyphosis most likely developed in a non-work-related manner, then states that her symptoms may be due to poor posture or the ergonomic situation of her workplace, but there is no definitive evidence that either was the case.[9]

[9]T11 at page 42 of the T documents.

1. In the context of the above evidence, the Respondent continued to pay for modest amounts of physiotherapy treatment and prolotherapy treatment and GP reviews performed by Dr de Burgh. The Respondent apparently accepted that Mrs Yeats experienced bilateral upper limb pain and also bilateral shoulder muscle and neck pain and associated restriction in movement, which was caused by or aggravated by the work duties she performed, particularly keyboarding.

1. In view of the evidence summarised above, the Tribunal finds that the Respondent accepted liability for two injury conditions. First, bilateral epicondylitis affecting the upper limbs. Second, a condition variously described or identified by the medical experts as, strained cervical vertebra facet joint and left trapezius muscle, diffuse cervico-brachial pain, and a postural syndrome effecting the cervico-thoracic spine and shoulder girdle.

1. The Respondent paid for prolotherapy and physiotherapy treatment expenses at the times identified in the Schedule of payments tendered in evidence.[10] They did so, accepting that the expenses were in respect of compensable conditions which caused symptoms of chronic pain in both upper limbs, shoulders and neck and restriction in movement.

   [10] Exhibit R1.

   EVIDENCE AND FINDINGS ABOUT TREATMENT EXPENSES AFTER 2005

2. In 2005, Mrs Yeats retired from employment and treatment was provided by her General Practitioner, Dr de Burgh, until Mrs Yeats was referred back to physiotherapy in 2013.

1. The Respondent then continued to pay for modest treatment expenses with Dr de Burgh, and physiotherapy. The frequency and cost of the treatment is identified in the Schedule of Payments.[11] In the 2013 calendar year, there were six physiotherapy visits. In the 2014 calendar year, there were five physiotherapy visits. In 2015, the Respondent did not pay for any physiotherapy expenses up to the date of the Reviewable decision.

[11] Ibid.

1. Ms Kellie Wilkie, Physiotherapist, gave oral evidence to the Tribunal. She impressed the Tribunal as being exceptionally knowledgeable and reliable in her area of expertise.  She made appropriate concessions and was very clear and adamant about what her treatment could effectively address and the importance of not over-servicing.

1. She was well aware of the guidelines and policies that provided best practice advice about when treatment should be provided and the scope and frequency of treatment.[12]

[12] Transcript of evidence of Ms Wilkie page 29 to 32.

1. The Tribunal finds that in treating Mrs Yeats, Ms Wilkie was conversant with best practice requirements and complied with them.

1. Ms Wilkie’s evidence in so far as it was relevant to the question of the Respondent’s liability for the cost of physiotherapy treatment was :

   a.That she understood and proceeded on the basis that Mrs Yeats had 2 compensable conditions. One involving the neck and shoulder region. The second, epicondylitis of both limbs.

   b.Ms Wilkie accepted the reports of chronic pain over many years from the affected regions.

   c.She provided dry needling, massage and education and instruction regarding exercises and strengthening at various times over essentially two periods. First during the period September 2001 to December 2004 and secondly, from mid-2013 to February 2015.

1. A number of Ms Wilkie’s letters/reports were in evidence and their contents were subject to cross-examination. Ms Wilkie conceded that the re-referral of Mrs Yeats to her in 2013 was in relation to the postural dysfunction she had.

1. Ms Wilkie was of the view that the kyphosis which Mrs Yeats presented with in 2013 was long standing but quite possibly related to employment with the Respondent because of the postures adopted in performing keyboard and mouse work.[13] In cross-examination her view was somewhat firmer, stating the kyphosis was likely to be the result of postures adopted at work over a long time.

[13] Transcript of evidence of Ms Wilkie, pages 16 to 18 and 26.

1. She agreed that the treatment she initiated in 2013 was to directly address postural function including kyphosis, which she considered all part of the compensable conditions.[14]

[14] Transcript of evidence of Ms Wilkie, page 15 and 18.

1. Ms Wilkie gave evidence during cross examination that the bilateral epicondylitis is known to be caused by lower loads over prolonged time on the upper limbs.[15]

[15] Transcript of evidence of Ms Wilkie, page 28, particularly lines 20 to 40.

1. It was also Ms Wilkie’s view that there were two components to the pain with which Mrs Yeats presented. A mechanical pain related to the kyphosis (which she considered to be postural and caused by work with the Respondent) and neural sensitivity pain related to the bilateral shoulder and upper limb overuse conditions likely caused by work with the Respondent.[16]  She said that the treatment she provided would not modify pain from all or any of the conditions, but was directed to improving function.  Ms Wilkie gave evidence that the treatment instigated after the re referral in 2013 had led to improvement or gains in Mrs Yeats’ function.[17]

[16] Transcript of evidence of Ms Wilkie, page 32 to 33.

[17] Transcript of evidence of Ms Wilkie, page 4, lines 30 to 35, page 6, lines 25 to 30, page 12, lines 37 to 45.

1. Although Mrs Yeats may have degenerative cervical spine changes, she has not been treating those.[18]

[18] Transcript of evidence of Ms Wilkie, page 33, lines 38 to 45.

1. In August 2014, the Respondent arranged for an assessment of Mrs Yeats by Associate Professor Barnsley. His opinion regarding Mrs Yeats’ condition is contained in the report of 15 August 2014.[19] He expanded on his views during the hearing.

[19] T33, pages 81 to 89 of the T documents.

1. The salient aspects of Associate Professor Barnsley’s views were:

   a.He considered Mrs Yeats experienced non-specific neck pain and right lateral epicondylitis.

   b.He accepted that she had symptoms consistent with mild left lateral epicondylitis.

   c.Non-specific neck pain has moderately high prevalence in the community. There is no data supporting chronic neck pain being caused by sedentary activities such as typing. It is common to experience temporary discomfort in the cervical spine with prolonged forward flexed postures.

   d.Epicondylitis involves degeneration in the tendon tissues themselves. It can be associated with direct impact or significant loading and typically resolves but persists with about 20% in some studies where there are persistent and refractory symptoms.

   e.He considered Mrs Yeats not to be exaggerating symptoms, was not being consciously guarded or displaying inconsistency between findings and symptoms.

   f.He accepted the epicondylitis was initially work caused, but considered the ongoing presentation to be more consistent with a chronic degenerative condition.

   g.He did not accept that the neck and trapezius pain were work related. Initially when she was working the postures adopted may have temporarily exacerbated neck problems, but current symptoms were no longer attributable to work.

   h.He did not consider the current symptoms to be directly related to employment. The relationship between symptoms and work were explored during questioning by the Tribunal.

   i.He considered that there was no indication for long term passive therapies, including physiotherapy. He made detailed reference to medical studies which failed to show any benefit for long-term chronic neck pain from passive therapies.

   j.It was his view that Mrs Yeats had chronic mild musculoskeletal problems and did not require any further treatment, other than self-exercise and strengthening.[20]

   [20] Page 89 of T documents, paragraph 5.

2. On questioning by the Tribunal, Associate Professor Barnsley expanded his views as follows:

   a.He accepted that upper limb and neck pain was known to develop in unsupportive workplaces, with tight deadlines, lack of control over environment and other adverse industrial circumstances.[21]

   b.He accepted the value of massage to relieve muscular tension and improve movement if it is restricted by muscle tension.[22]

   c.He agreed that massage treatment was helpful in relieving pain in the short term.[23]

   d.He endorsed the use of physiotherapist directed exercise and strengthening programs for chronic pain and overuse conditions, but only in the short term.[24]

   e.Instruction by a physiotherapist in relation to exercise and strengthening was not reasonable in the longer term, as it was his view that it was not a clinician’s responsibility to continue with re-education of these on a long term basis.[25]

   f.There is no evidence that long term passive therapies assist with chronic pain and there is concern that they are counterproductive in the long run because people become somewhat dependent on it.[26]

   g.In cases of chronic pain, if there had been a break in physiotherapy treatment involving exercise and strength education/instruction, upon re-introduction of that treatment a reasonable period of instruction would be “half a dozen visits or so”.[27]

   h.Ms Wilkie’s view that pain from a postural kyphosis and pain from the bilateral upper limb and shoulder conditions each fed the other and it was not possible to disentangle the treatment she provided as being for one or another, was a reasonable hypothesis. However he added that it was not testable and he had difficulty understanding what expectation there was from it decades on.[28]

   [21] Transcript of evidence of Associate Professor Barnsley page 20, lines 1 to 10.

   [22] Transcript of evidence of Associate Professor Barnsley page 22, lines 22 to 26.

   [23] Transcript of evidence of Associate Professor Barnsley page 22, lines 10 to 15.

   [24] Transcript of evidence of Associate Professor Barnsley page 23, lines 10 to 14.

   [25] Transcript of evidence of Associate Professor Barnsley page 23, lines 1 to 9.

   [26] Transcript of evidence of Associate Professor Barnsley page 23, lines 20 to 35.

   [27] Transcript of evidence of Associate Professor Barnsley page 24, line 1 to 7.

   [28] Transcript of evidence of Associate Professor Barnsley page 24, lines 16 to 31.

CONSIDERATION OF ISSUE

1. Section 16 of the Act governs when the Respondent is obliged to pay for medical treatment expenses in respect of Mrs Yeats’ compensable conditions.

1. Material to the determination to be made is that there is no onus of proof as that concept is understood at common law and that the status quo of liability ought to remain unless the evidence establishes otherwise.[29] Nevertheless, the Tribunal needs to have an acceptable level of satisfaction of the case put by the Applicant to allow the application for review.[30]

[29] McDonald v Director-General of Social Security [1984] FCA 57; Commonwealth of Australia v Muratore [1978] HCA 47, both followed in Australian Telecommunications Commission v Barker [1990] FCA 489 at paragraph 8.

[30]Smith and Comcare [2002] AATA 249 at [58] to [65]; McDonald; Tran and Comcare [2010] AATA 719; Manns and Comcare [2012] AATA 462.

1. The Respondent conceded in its closing submissions that the medical conditions for which the Applicant seeks payment of physiotherapy treatment, are still contributed to by employment with the Commonwealth to a material degree.[31]

[31] Page 9 of written closing submissions by Counsel for the Respondent.

1. However, the Respondent’s contention was that physiotherapy treatment only fell within the meaning of medical treatment for the purposes of the Act,[32] if it was therapeutic. It referred to the meaning of “therapeutic treatment” in section 4(1) of the Act and emphasised the requirement that it be for the purpose of alleviating injury.[33]

[32] In section 4(1) of the Safety Rehabilitation and Compensation Act 1988.

[33] Alamos and Comcare [2014] AATA 629, [17] to [20].

1. The Tribunal has found that the compensable conditions are those identified in paragraph 26 and 27 of these reasons.

1. The Tribunal is persuaded to the requisite degree by the evidence of Mrs Yeats and Ms Wilkie that the physiotherapy treatment provided has improved movement in the upper limbs, shoulders and neck. Mrs Yeats was not challenged about this part of her evidence and in any event the Tribunal found her to be a credible and reliable witness. Ms Wilkie identified objective improvement in function during the course of treatment and stated that she would not continue treatment if there were no such signs.[34]

[34] Transcript of evidence of Ms Wilkie, page 12, lines 37 to 45.

1. Although Associate Professor Barnsley referred to literature to the effect that passive treatment was ineffective in the longer term, he has not had the benefit of observing and monitoring Mrs Yeats’ function over the time treatment has been given.  Rather, he relied on the absence of clear evidence of benefit from certain studies and the general attitude of his professional peers.

1. The Tribunal concludes that the physiotherapy treatment provided by Ms Wilkie is therapeutic and constitutes medical treatment for the compensable conditions.

2. The circumstances in which medical treatment is reasonable has been the subject of a number of decisions of this Tribunal. They were referred to by Counsel for the Respondent in his closing submissions.

1. From the relevant authorities, the following principles can be distilled and they have been applied to the conclusion reached below:

   a.Reasonableness in the circumstances involves assessment of whether some kind of treatment other than that undertaken or no treatment, is better for a particular injury. [35]

   [35] Re Jorgensen and Commonwealth (1990) 23 ALD 321.

   b.Reasonableness involves objectivity, while reference to the circumstances raises subjective factors related to the nature of injury, not the personal life of the applicant.[36]

   c.If physiotherapy affords some degree of short pain relief but is outweighed by a counterproductive effect of dependency or inability to cope, it is not reasonable in the circumstances.[37]

   d.It is necessary to consider all the circumstances, not only beneficial effects experienced by the Applicant. The relevant considerations are –

   ·Benefit of treatment to the injured worker;

   ·Long-term effect of treatment;

   ·Whether treatment is likely to cure or significantly reduce its effects;

   ·Whether treatment maintains status quo;

   ·The cost of ongoing treatment.[38]

[36] Ibid.

[37] Re Popovic and Comcare [2000] AATA 264.

[38] Alamos and Comcare [2014] AATA 629 at [22] and [24].

1. Considering the findings of the Tribunal by reference to the principles at paragraph 52, the Tribunal is satisfied that physiotherapy treatment is reasonable in the circumstances. The type of treatment and limited frequency of it as provided by Ms Wilkie, given the functional improvement or maintenance it affords for the upper limbs, shoulders and neck are all reasonable in the circumstances of the compensable conditions.

1. Although there was evidence given by Associate Professor Barnsley that passive treatment, including physiotherapy, was ineffective in the longer term in treating Mrs Yeats’ compensable conditions and indeed could be detrimental because they created a dependency, the evidence before the Tribunal in this case was to the contrary. The evidence is of a few to a maximum of six visits per year since 2013. This cannot be regarded as dependency and further there was ample evidence before the Tribunal that Mrs Yeats usually self-managed with exercise and strengthening programs and only required periodic reminders or reinforcement in sessions with Ms Wilkie.

1. The Tribunal rejects the view of Associate Professor Barnsley that it is not the role of a clinician to periodically re-assess and reinforce self-management of exercise and strength programs. The nature of re-assessment by a physiotherapist of exercise and strength programs, is quite distinct from the comparison given in evidence, of monitoring that a patient takes prescribed medication. In any event, the Tribunal notes that doctors routinely periodically review patients to re-prescribe the same medications and check that they are suitable and continue to be effective for a patient.

1. The Respondent contended that the gap in physiotherapy treatment for an extended time demonstrated that the treatment was clearly not required.  This is rejected on the basis that Mrs Yeats was having other treatment during the period in question from Dr de Burgh and was presumably reasonably applying herself to exercise and strengthening programs.

1. However the evidence is that re-referral for physiotherapy was instigated to explore what, if any, benefit could be achieved at that time to address restriction in movement, part of which was caused by the compensable conditions.

1. It is unnecessary for the Tribunal to reach any conclusion about whether or not the kyphosis was or was not caused by employment with the Respondent. Even if it was, there is no explicit claim by the Applicant for it.

1. The Tribunal notes that Associate Professor Barnsley accepted that there was a reasonable hypothesis about the inter-relationship between the pain and functional restriction caused by kyphosis on the one hand and the compensable conditions on the other.

1. The fact that treatment also potentially addresses a non-compensable condition, does not mean that the treatment is unreasonable in the circumstances. To the contrary, it may, depending on the respective injuries, be a proper consideration for assessing reasonableness in the circumstances.

1. The conclusion is that the Respondent is liable for continuing physiotherapy treatment for the compensable conditions, on the basis it has been provided by Ms Wilkie in more recent times. The Tribunal considers that up to six visits per annum if required, would fall within the bounds of reasonableness in the circumstances of the compensable conditions.

1. The Reviewable decision is affirmed in respect of the liability to pay for prolotherapy treatment but remitted to the Respondent in respect of its liability for physiotherapy treatment, to give effect to the Tribunal’s conclusion and the recommendation at paragraph 61.

   Ms S Taglieri, Member

   27 January 2017

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri, Member

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Associate

Dated: 27 January 2017

Date(s) of hearing:	21 and 23 November 2016
Applicant:	In person
Counsel for the Respondent:	Mr Craig Hobbs
Solicitors for the Respondent:	Ms Naomi Richards