Young and Comcare
[2005] AATA 1277
•21 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1277
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/102
GENERAL ADMINISTRATIVE DIVISION ) Re PATRICIA YOUNG Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate21 December 2005
PlacePerth
Decision The Tribunal sets aside the reviewable decision of the respondent dated 9 February 2004 and, in substitution therefor, decides that the respondent is liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) to pay compensation to Ms Young in accordance with s 16(1) of the SRC Act as specified in paragraph 44 of the Tribunal’s Reasons for Decision herein.
The Tribunal orders, pursuant to s 67 (8) of the SRC Act, that the costs of these proceedings incurred by Ms Young be paid by the respondent.
...........(sgd S D Hotop)...........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – medical treatment – “Feldenkrais Method” treatment – therapeutic treatment – obtained at direction of legally qualified medical practitioner – reasonable in circumstances to obtain such treatment – reviewable decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), s 14(1) and s 16(1)
Comcare v Watson (1997) 73 FCR 273
REASONS FOR DECISION
21 December 2005 Deputy President S D Hotop
Dr D Weerasooriya, MemberIntroduction
1. In the period 1995–1997 Ms Patricia Young suffered injuries in the regions of her neck, shoulders and back in the course of her employment with the Commonwealth, and she subsequently claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of those injuries.
2. On 11 March 1998 the respondent accepted liability under the SRC Act to pay compensation to Ms Young in respect of a condition described as “exacerbation of pre-existing cervico-thoracic conditions and aggravation of pre-existing left shoulder and fibromyalgia conditions”.
3. The respondent has paid compensation in accordance with the SRC Act to Ms Young, including compensation pursuant to s 16 of the SRC Act in respect of the cost of medical treatment obtained by her in respect of her work-related condition. That treatment included “Feldenkrais Method” treatment.
4. On 12 November 2003, however, an officer of the respondent determined that the respondent was not liable to pay compensation to Ms Young for medical expenses associated with Feldenkrais sessions attended by her in 2002 and 2003. That determination was affirmed by a review officer of the respondent in a “reviewable decision” made on 9 February 2004.
5. Ms Young has applied to the Tribunal for a review of the “reviewable decision” of 9 February 2004.
The Issues and the Tribunal’s determination
6. The ultimate issue is whether the respondent continues to be liable to pay compensation pursuant to s 16 (1) of the SRC Act to Ms Young in respect of the cost of her obtaining “Feldenkrais Method” treatment. In order to determine that issue, the Tribunal is required also to determine the following issues:
· whether “Feldenkrais Method” treatment obtained by Ms Young constitutes “medical treatment” (as defined in s 4 (1) of the SRC Act) for the purposes of s 16 (1) of the SRC Act; and, if so,
· whether the “Feldenkrais Method” treatment obtained by Ms Young is “treatment that it was reasonable for [her] to obtain in the circumstances”, for the purposes of s 16 (1) of the SRC Act.
7. For the reasons which follow, the Tribunal has determined that:
· the “Feldenkrais Method” treatment obtained by Ms Young does constitute “medical treatment” for the purposes of s 16 (1) of the SRC Act;
· the “Feldenkrais Method” treatment obtained by Ms Young in 2002 and 2003 is “treatment that it was reasonable for [her] to obtain in the circumstances”, for the purposes of s 16 (1) of the SRC Act;
· as from 1 January 2004 it was, and is presently, “reasonable…in the circumstances”, for the purposes of s 16 (1) of the SRC Act, for Ms Young to obtain “Feldenkrais Method” treatment twice per year, at approximately 6-monthly intervals, by attending either an individual session or a group session (at her choice) conducted by a certified Feldenkrais practitioner.
8. Accordingly, the Tribunal has determined that the respondent is liable to pay compensation pursuant to s16(1) of the SRC Act to Ms Young in respect of the cost of her obtaining “Feldenkrais Method” treatment as indicated in paragraph 7 above.
The Legislation
9. The relevant provisions of the SRC Act are as follows:
“4Interpretation
(1) In this Act, unless the contrary intention appears:
…
medical treatment means:
(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
(dtherapeutic 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.
…
therapeutic treatment includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
…
14 Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
16Compensation in respect of medical expenses etc.
(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.
…”
The Factual Background
10. Ms Young first attended a “Feldenkrais Method” session on 10 March 1998 and thereafter continued to attend such sessions on (approximately) a weekly/fortnightly basis. These sessions were conducted by Mrs Annie Cosgrove, a registered physiotherapist and a certified Feldenkrais practitioner, to whom Ms Young was initially referred by her general practitioner, Dr H Singh.
11. In various workers’ compensation progress medical certificates issued by him in 1998, Dr Singh specified (among other treatments) “Feldenkrais” treatment for Ms Young for her work-related condition. In a Comcare Medical Review Certificate dated 15 December 1998 Dr Singh recommended various types of “therapeutic treatment” including “Feldenkrais”, as part of a “medical treatment plan” for Ms Young’s compensable condition. In subsequent medical review certificates in the period 1998-2001 Dr Singh continued to recommend that Ms Young attend for “Feldenkrais” treatment on a weekly basis. Dr Singh also continued to specify “Feldenkrais” treatment for Ms Young in workers’ compensation progress medical certificates issued by him in 2002 and 2003.
12. Meanwhile Ms Young was referred by Dr Singh to Dr J Salmon, Specialist in Pain Management, who first examined her in January 2000 and opined that she had “chronic neuropathic pain affecting the hands, arms and right scapular region” and that her symptoms were consistent with a diagnosis of “complex regional pain syndrome type 1 (formerly known as reflex sympathetic dystrophy)”. At the same time Ms Young was also referred by Dr Singh to Dr R Will, Rheumatologist, who examined her in January 2000 and diagnosed her condition as “myofascial pain syndrome involving the trapezial region” with “secondary sympathetic response in the upper limbs”.
13. In a Comcare Treatment Plan form completed on 3 October 2003 Dr Salmon specified the “type of treatment required” for Ms Young’s “CRP” (complex regional pain syndrome) and “cervico-dorsal conditions” as including “Feldenkrais” once per week. On 9 December 2003 Dr Salmon reported to Dr Singh that it was “important” that Ms Young “continues to have access to her current hydrotherapy and Feldenkrais treatment”.
Ms Young’s Evidence
14. Ms Young gave evidence regarding the symptoms which she continues to experience as a result of her work-related injury, and the treatment which she continues to receive for the management of those symptoms. She described the major symptoms as “burning pain” and “muscle spasm” in the thoracic region and occasionally also in the lower lumbar region and in the upper limbs. She also referred to feelings of nausea (if the pain is not kept under control) and great problems with sleeping. As regards past and present treatment, she referred to various medications, “hands-on” physiotherapy (which she has discontinued because it exacerbated her pain symptoms), hydrotherapy, yoga and Feldenkrais treatment (which she continues to receive).
15. As regards the “Feldenkrais Method”, Ms Young said that it enhances her “body awareness” and teaches her how to increase her mobility and to move her body in such a way as to minimise her pain and muscle spasm symptoms. Ms Young said that she has learned Feldenkrais techniques from the sessions conducted by Mrs Cosgrove which she has attended since 1998 and that she is able to apply those techniques at home in her normal daily activities. She also has a set of audiotapes on Feldenkrais techniques which she can listen to and follow, although she added that if she is “having a bad day” she cannot keep pace with the exercises described on the tapes.
16. Ms Young said that she regards her attendance at Feldenkrais group sessions conducted by Mrs Annie Cosgrove as beneficial for two main reasons:
· Mrs Cosgrove conducts the sessions in such a way as to cater for the particular needs and capacities of each member of the group, and Ms Young derives benefit from the individual attention and assistance (albeit in a group session) which she receives from Mrs Cosgrove;
· Mrs Cosgrove is constantly updating her skills as a Feldenkrais practitioner and learning to apply new Feldenkrais techniques and to modify existing techniques, and Ms Young benefits from attending Mrs Cosgrove’s sessions and herself learning to apply those new or modified techniques in her own circumstances.
Ms Young also said that, in addition to attending such group sessions, she has in the past attended an individual session with Mrs Cosgrove whenever she has encountered specific problems with her practice of the “Feldenkrais Method”. She added that that had occurred at approximately 12-monthly intervals.
The Evidence of Mrs A Cosgrove
17. Mrs Cosgrove is a qualified physiotherapist and has been registered with the Physiotherapists’ Registration Board of Western Australia since 3 December 1968. She said that in 1990, however, she decided to embark on a 4-year part-time Feldenkrais training programme and, since completing that programme, she has worked full-time as a Feldenkrais practitioner, rather than as a physiotherapist.
18. Mrs Cosgrove said that, in order to maintain her certification as a Feldenkrais practitioner, she is required to complete at least 30 hours of continuing education per year, and she fulfils this requirement by attending 4-5 day advanced training programmes once or twice per year at which she learns new ideas in Feldenkrais treatment and techniques. She agreed that the practice of the “Feldenkrais Method” is “very much” a developing profession.
19. A copy of an article entitled “The Feldenkrais Method” by Dr Richard Yin, which was provided by Mrs Cosgrove, was tendered in evidence (Exhibit A6). The contents of that article are as follows:
“The Feldenkrais Method is a kinaesthetic education system that aims to increase one’s awareness of movement patterns and how they may be reorganised. It has a wide variety of applications including the improvement of performance skills of musicians, dancers and athletes. In the medical system, however, its main application is in the management of people with joint or soft tissue pain, movement restriction or neurological problems.
Within the Method there are some fundamental principles that make it different from a medical approach. This is particularly evident in the management of patients with joint or soft tissue pain. While the medical approach seeks to establish a treatment based on an anatomical and pathological diagnosis, the Feldenkrais Method places the locus of the problem not within a given site but within a pattern of movement or posture that creates or maintains pain. As such it recognises the ‘interdependence of the central nervous and musculoskeletal systems in normal and abnormal function’ (Jull and Janda, 1987), this is not to deny a pathological diagnosis. Rather it aims to help an individual in pain by creating new movement patterns which are painfree or performed without excessive force, or by restoring smooth, efficient movement inhibited by unnecessary neuromuscular activity. Such an approach may be particularly useful in spinal pain where the diagnosis often remains controversial (Bogduk, 1992) or where upon diagnosis we are left with treatment options that are essentially therapeutic trials – be they facet joint injections, nerve root sleeve injections, sympathetic nerve blocks etc.
In such instances the Feldenkrais Method can be a safe and conservative option before progressing to more aggressive interventions. More importantly, it may provide neuromusculoarticular rehabilitation that would prevent a recurrence of low back pain and not simply alleviate the symptoms.
In patients with neurological problems the Method may be of benefit refining movement patterns that can be performed with maximum efficiency.
There are two complementary parts to the Method, Awareness Through Movement (ATM) and Functional Integration (FI). In ATM a practitioner guides a patient verbally through a sequence of movements which allow him/her to discover new patterns of organisation. FI are movement patterns produced by a practitioner on a patient by moving various body segments. It is often useful for patients to have a series of FI lessons first and then continue his/her learning in group ATM classes.
Feldenkrais practitioners complete a four year professional training programme involving two one-month intensive segments per year. There exists an Australian Feldenkrais Guild with state sub-divisions. …”
20. Mrs Cosgrove confirmed that she has been treating Ms Young in accordance with the Feldenkrais Method since March 1998 and that in that period Ms Young had attended approximately 180 sessions. In a report dated 9 July 2004 (Exhibit A4) Mrs Cosgrove confirmed that Ms Young initially attended Functional Integration (individual) sessions and subsequently attended group sessions. As regards individual sessions, Ms Young attended 17 in 1998, 4 in 1999, 3 in 2000 and 1 in 2003. The remainder of the sessions Ms Young attended were group sessions (comprising 5-7 members), and she has attended a group session, on average, every 1-2 weeks since September 1998.
21. In a report dated 6 October 2004 (Exhibit A5) Mrs Cosgrove opined that continued regular attendance by Ms Young at Feldenkrais sessions would be “beneficial in helping [her to] improve and keep learning how to handle newly arising challenges in her rehabilitation”. Mrs Cosgrove also opined, however, that “one to one work at this point is not necessary on a regular basis”. She added that Ms Young’s “symptoms do flare up and worsen at times” and that “the occasional individual treatment can prevent her from regressing and show her how to handle these new conditions”. This, she said, “appears only to be required about twice a year”.
The Medical Witnesses
Dr J Salmon
22. Dr Salmon said that he has been practising full-time as a pain management specialist for about 18 years. Dr Salmon confirmed that he has been treating Ms Young since January 2000, and that he has prepared numerous reports regarding her condition, the first report on 14 January 2000, and the most recent report on 25 January 2005 (Exhibit A10). A report of Dr Salmon to the respondent, dated 15 January 2004, relevantly states (Exhibit A8):
“…
2.On 31 January 1996 Ms Young slipped over at work and struck the right side of her head and neck against the desk. Following this she developed lower neck and right scapular region pain and during a period of intensive keyboarding during February 1998 she developed additional pain in the arms and hands. Pain symptoms forced her to cease work in August 1998. Her clinical presentation is characterised by continuous burning pain in the hands and lower arms with variable hot and cold skin temperature change and seating change and blotchy skin discolouration with symptoms exacerbated by cold temperature change. She has also noted variable tremor and weakness affecting the hands. This presentation is consistent with the diagnosis of neuropathic pain, complex regional pain syndrome type 1.
3.Ms Young continues to manifest a chronic neuropathic pain condition which was triggered by the work related events in 1996 and 1998.
…
6.Mrs (sic) Young’s current principal pain symptoms are in the neck and shoulder and arm regions to the hands and these symptoms date from the work injuries in 1996 and 1998. She is also troubled by variable lesser pain in the lumbar and leg regions and headache which have come on over the last few years.
…
8.Ms young attends me at approximate two to three months intervals. At these consultations I review Ms Young’s pain management strategies including medication regimen, exercise and self-management activities. This treatment approach has been consistent through the last four years of consultations. Ms Young has reported gradual improvement with this treatment.
…”
A report of Dr Salmon to Ms Young’s solicitors, dated 27 September 2004, relevantly states (Exhibit A9):
“Appropriate management of Mrs Young’s chronic pain condition should be based on her acquisition of appropriate physical and psychological self management strategies. I consider that Feldenkrais treatment is an appropriate route towards optimum physical self management and entirely appropriate for Mrs Young whose condition has been refractory to many other treatment approaches. The goal of all treatment should be to render Mrs Young independent of further therapy in the long-term. However I consider that Mrs Young has not yet reached this point and it seems very reasonable for her to continue with her current modest Feldenkrais input for the time being.”
A report of Dr Salmon to the respondent’s solicitors, dated 25 January 2005, relevantly states (Exhibit A10):
“…
3.Mrs Young’s clinical diagnosis is chronic neuropathic pain and the currently accepted treatment approach for this condition is a combination of appropriate medication and multidisciplinary management including exercise and activity management prescription. In this context intermittent review by a Feldenkrais practitioner would be entirely reasonable treatment.
…”
23. In his oral evidence Dr Salmon said that nowadays the basic treatment approach for Ms Young’s condition is cognitive behavioural therapy whereby the patient is taught self-management strategies for gradually increasing their activity in very small increments. He opined that Feldenkrais treatment is a “very congruent and appropriate” treatment for that condition because it “emphasises self-management and activity”. Dr Salmon noted that Ms Young has had physiotherapy treatment, and he continued (Transcript, p113):
“And I think in Mrs Young’s case, her preference has been for Feldenkrais orientated exercise prescription and she has vigorously pursued it over the years and by her report, has had benefit. And therefore, I have supported it. And certainly, the amount that she has consumed in terms of supervised sessions is – is really fairly modest by the standards of what these patients can consume in the way of passive treatment. So I think, you know, we try to move patients, it’s quite true, away from passive therapists because some of them get entirely and inappropriately dependent on seeing physios or other practitioners for hands on treatment which doesn’t help them. But treatment that is addressing self-management exercise activity is entirely appropriate and patients, like everyone else, need the odd review session to keep them on track, to keep them encouraged, to review whether their nervous system sensitivity has altered and to upgrade their exercising. So I think in reality it is quite appropriate for these patients, when they are as disabled as Mrs Young is, to have access to intermittent reviews. …”
24. Finally, Dr Salmon confirmed that he regards Feldenkrais treatment as therapeutic treatment for Ms Young in that it promotes the goal of “keeping her active in a controlled way and making her confident in being active through the day”, and it is “improving her condition” and “making her more functional and less reliant on medication”.
Mr P Hardcastle
25. Mr Hardcastle said that he has been practising as an orthopaedic and spinal surgeon for 20 years. He confirmed that he had prepared a report, dated 6 August 2004, following an examination of Ms Young at the request of the respondent’s solicitors (Exhibit R5).
26. Mr Hardcastle said that, on his examination of Ms Young, he did not see any evidence that she is suffering from a complex regional pain syndrome, although he was prepared to accept a provisional diagnosis of muscular pain.
27. As regards Feldenkrais treatment, Mr Hardcastle said (Transcript, p92):
“Feldenkrais is one of a number of non-specific treatments that are available for people with pain syndromes. I have no objection to it. And I advise certain patients through my private practice to, you know, go and try Bowen treatment, try Feldenkrais. You may find one of those helpful for you. And if you do, that is good, use it. But it is very much a non-specific treatment. ... Feldenkrais is more of a balance type treatment, a range of movement, that helps people relax and helps them understand different movements so that they move, you know, slightly – well, maybe in a slightly different way to just overall try and help their pain. It is not actually – it is not a form of muscle strengthening to take pressure off the spine. It is more just – more of a balance type, stretching type program. …”
Mr Hardcastle said that Ms Young has already had extensive training and experience in Feldenkrais techniques and that she should now be able to perform those techniques by herself at home and should now not need to attend Feldenkrais sessions or receive one-on-one Feldenkrais treatment or supervision. In short, he opined that there was no further benefit which Ms Young could gain from attending Feldenkrais sessions, whether individual or group sessions.
Analysis and Findings
Does the “Feldenkrais Method” treatment obtained by Ms Young constitute “medical treatment” for the purposes of s 16(1) of the SRC Act?
28. Ms Young relied on paras (b) and (d) of the definition of the expression “medical treatment” in s 4(1) of the SRC Act (see paragraph 9 above).
29. The kind of treatment which is the subject of both para (b) and para (d) of the definition of “medical treatment” in s 4(1) of the SRC Act is “therapeutic treatment”. The expression “therapeutic treatment” is itself defined in s 4(1) of the SRC Act to include “treatment given for the purpose of alleviating an injury”. In Comcare v Watson (1997) 73 FCR 273 the Federal Court of Australia (Finn J), in the context of s 16(1) of the SRC Act and the definition of “medical treatment” in s 4(1) of that Act, said (at 276):
“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”.
30. On the basis of Dr Salmon’s evidence, the Tribunal finds that Ms Young suffers from a chronic neuropathic pain condition (complex regional pain syndrome type 1) and that her chronic pain is caused by her accepted work-related injury. On the basis of Dr Salmon’s evidence, and Ms Young’s evidence, the Tribunal finds that the treatment received by Ms Young at “Feldenkrais Method” sessions attended by her since March 1998 was provided to, and obtained by, her for the purpose of alleviating the chronic pain symptoms suffered by her as a result of her work-related injury. Accordingly, the Tribunal finds that that “Feldenkrais Method” treatment is “therapeutic treatment”, within the meaning of paras (b) and (d) of the definition of medical treatment” in s4(1) of the SRC Act.
Was the “Feldenkrais Method” treatment obtained by Ms Young “at the direction of a legally qualified medical practitioner”?
31. In Comcare v Watson (above) Finn J (at 276) noted that the phrase “at the direction of”, in para (b) of the definition of “medical treatment” in s 4(1) of the SRC Act, contains “an imperative element”. He went on, however, to express the view that obtained therapeutic treatment which had been “advised, prescribed or ordered” by a qualified medical practitioner could properly be regarded as having been obtained “at the direction of” that medical practitioner, within the meaning of para (b) of the definition of “medical treatment”.
32. In the present case, according to the evidence before the Tribunal, Ms Young was initially referred by her general practitioner, Dr H Singh, to Mrs A Cosgrove for “Feldenkrais Method” treatment in 1998, and Dr Singh thereafter, in various progress medical certificates and medical review certificates, consistently specified or recommended “Feldenkrais” treatment for Ms Young on a weekly basis up to, and including, the year 2003. Furthermore, in October 2003 Dr Salmon specified weekly “Feldenkrais” treatment as one of several treatments “required” for Ms Young’s work-related condition, and in December 2003 he reiterated that it was “important” that Ms Young continue to have access to her “current … Feldenkrais treatment”.
33. On the basis of that evidence the Tribunal has no difficulty in finding that the “Feldenkrais Method” treatment which Ms Young received throughout the years 2002 and 2003 was obtained by her “at the direction of” of a legally qualified medical practitioner, within the meaning of para (b) of the definition of “medical treatment” in s 4(1) of the SRC Act. Accordingly, the Tribunal finds that the “Feldenkrais Method” treatment obtained by Ms Young throughout the years 2002 and 2003 was “medical treatment” (as defined in s4(1) of the SRC Act) for the purposes of s 16(1) of the SRC Act.
34. As regards the “Feldenkrais Method” treatment obtained by Ms Young in the years 2004 and 2005, there is no documentary evidence before the Tribunal which confirms that that treatment was obtained by her “at the direction of” a medical practitioner. Nor, however, is there any evidence before the Tribunal that Dr Singh and Dr Salmon, on whose advice Ms Young obtained “Feldenkrais Method” treatment in 2002 and 2003, had since altered or withdrawn that advice. In his evidence to the Tribunal, however, Dr Salmon confirmed that he continued to support ongoing “Feldenkrais Method” treatment for Ms Young because he regarded it as appropriate treatment for her condition and she appeared to be benefiting from it. As regards the appropriate frequency of such treatment, Dr Salmon’s evidence was that “intermittent review” by a Feldenkrais practitioner was now appropriate in Ms Young’s case.
35. On the basis of Dr Salmon’s evidence, the Tribunal finds that “Feldenkrais Method” treatment obtained by Ms Young in 2004 and 2005 was obtained by her “at the direction of” a legally qualified medical practitioner (namely, Dr Salmon), within the meaning of para (b) of the definition of “medical treatment” in s 4(1) of the SRC Act.
Was Ms Young’s “Feldenkrais Method” treatment given “by, or under the supervision of, a [registered] physiotherapist, osteopath, masseur or chiropractor …”?
36. It is common ground that Mrs Cosgrove, who has given “Feldenkrais Method” treatment to Ms Young since March 1998, has, for the entirety of that period, been registered as a physiotherapist with the Physiotherapists’ Registration Board of Western Australia.
37. The respondent submitted, however, that only therapeutic treatment which is within “the area of specialty” of the relevant kind of practitioner specified in para (d) of the definition of “medical treatment” in s 4(1) of the SRC Act – namely, physiotherapist, osteopath, masseur or chiropractor – is caught by that paragraph. Accordingly, it was submitted that only physiotherapy treatment given by Mrs Cosgrove would be caught by para (d), and that “Feldenkrais Method” treatment, which (it is common ground) is not physiotherapy, is therefore not caught by para (d).
38. The Tribunal accepts the respondent’s submission. In the Tribunal’s opinion it is implicit in the terms of para (d) that that paragraph catches only therapeutic treatment which is provided by a person who is lawfully registered in any of the 4 specified occupations and which is in the nature of the treatment which such person is held out as qualified and competent to provide by reason of such registration. The Tribunal notes that, pursuant to para (i) of the definition of “medical treatment” in s 4(1) of the SRC Act, reg 17(1) of the Safety, Rehabilitation and Compensation Regulations 2002 prescribes therapeutic treatment by, or under the supervision of, a person registered in any of the following 5 additional specialist occupations, namely, occupational therapist, optometrist, podiatrist, psychologist, speech therapist.
39. The Tribunal finds, therefore, that the “Feldenkrais Method” treatment provided to Ms Young by Mrs Cosgrove does not fall within para (d) of the definition of “medical treatment” in s 4(1) of the SRC Act because, although that treatment is “therapeutic treatment” and it is provided by a registered physiotherapist, it is not in the nature of treatment which Mrs Cosgrove is held out as qualified and competent to provide by reason of her registration as a physiotherapist. The Tribunal notes, in this connection, that Mrs Cosgrove, who describes herself as a “Physiotherapist” and a “Certified Feldenkrais Practitioner”, gave evidence that the relevant professional body for Feldenkrais practitioners is The Australian Feldenkrais Guild, an independent body which is responsible for the relevant professional training programmes and the certification process.
Finding
40. As regards the issue of whether the “Feldenkrais Method” treatment obtained by Ms Young constitutes “medical treatment” for the purposes of s 16(1) of the SRC Act, the Tribunal makes the following findings:
· the “Feldenkrais Method” treatment obtained by Ms Young does not fall within para (d) of the definition of “medical treatment” in s 4(1) of the SRC Act;
· the “Feldenkrais Method” treatment obtained by Ms Young from 1998 to the present date constitutes “medical treatment” for the purposes of s 16(1) of the SRC Act, being “medical treatment” as defined in para (b) of the definition of “medical treatment” in s 4(1) of the SRC Act.
Was the “Feldenkrais Method” treatment obtained by Ms Young in the period from 1 January 2002 to the present date treatment that it was “reasonable for [her] to obtain in the circumstances”, for the purposes of s 16(1) of the SRC Act?
41. As regards the weekly “Feldenkrais Method” treatment obtained by Ms Young in the period from 1 January 2002 to 31 December 2003, that treatment was, as the Tribunal has found, obtained by her in relation to her work-related condition on the advice of her treating general practitioner, Dr Singh, and, subsequently, also on the advice of her treating pain management specialist, Dr Salmon. In those circumstances the Tribunal has no difficulty in finding that it was “reasonable… in the circumstances” for Ms Young to obtain the weekly “Feldenkrais Method” treatment which she obtained during the period from 1 January 2002 to 31 December 2003.
42. As regards the period from 1 January 2004 to the present date, the Tribunal is satisfied, on the whole of the evidence before it, that, by the end of 2003, Ms Young had sufficient knowledge of, and experience in practising, “Feldenkrais Method” techniques to enable her effectively to practise those techniques on her own without the necessity for frequent specific guidance or supervision by a certified Feldenkrais practitioner. Accordingly, the Tribunal finds that, in those circumstances, it was not reasonable for Ms Young to obtain “Feldenkrais Method” treatment with the frequency that she obtained it in 2004 and 2005 (namely, according to Exhibit A2, 13 group sessions in 2004, and 7 group sessions up to 8 June 2005).
43. On the basis of the evidence of Dr Salmon and Mrs Cosgrove, however, the Tribunal accepts that it has been since 1 January 2004, and is presently, “reasonable… in the circumstances” for Ms Young to continue to obtain “Feldenkrais Method” treatment on a regular, but less frequent, basis in order for her to update her knowledge of “Feldenkrais Method” developments and to learn new techniques and movements in that constantly developing form of therapeutic treatment. In the Tribunal’s opinion, it has been since 1 January 2004, and is presently, “reasonable… in the circumstances” for Ms Young to obtain such “Feldenkrais Method” treatment twice per year, at approximately 6-monthly intervals, by attending either an individual session or, if she prefers, a group session conducted by a certified Feldenkrais practitioner, and the Tribunal so finds.
Conclusion
44. On the basis of the abovementioned findings the Tribunal concludes that the respondent is liable to pay to Ms Young, in accordance with s 16(1) of the SRC Act, compensation as follows:
· the cost of the whole of the “Feldenkrais Method” treatment obtained by Ms Young in the period from 1 January 2002 to 31 December 2003; and
· as from 1 January 2004, the cost of attendance by Ms Young at 2 “Feldenkrais Method” sessions (either an individual session or a group session, according to her choice) conducted by a certified Feldenkrais practitioner in each calendar year at approximately 6-monthly intervals.
Decision
45. For the above reasons the Tribunal sets aside the reviewable decision of the respondent dated 9 February 2004 and, in substitution therefor, decides that the respondent is liable under s 14(1) of the SRC Act to pay compensation to Ms Young in accordance with s 16(1) of that Act as specified in paragraph 44 above.
46. The Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by Ms Young be paid by the respondent.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: (sgd E M Jordan) .....................................................................................
Associate
Date/s of Hearing 3-4 August 2005
Date of Decision 21 December 2005
Counsel for the Applicant Mr H Christie
Solicitor for the Applicant Henry Christie
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Sparke Helmore
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