ZXCF and Comcare (Compensation)

[2019] AATA 3572

ZXCF and Comcare (Compensation) [2019] AATA 3572 (17 September 2019)

Division:GENERAL DIVISION

File Number:          2018/2989

Re:ZXCF

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans

Date:17 September 2019  

Place:Perth

1.The Reviewable Decision, being the decision of a delegate of the Respondent dated 3 April 2018, is set aside.

2.The Tribunal substitutes a new decision that the Respondent is liable to pay compensation pursuant to s 16(1) of the SRC Act for nutritional supplements and craniosacral therapy, being therapeutic treatments obtained at the direction of the Applicant’s legally qualified psychiatrist, Dr Williams, for the purpose of treating the Applicant’s accepted PTSD condition.

................................[sgd]...................................

Senior Member Dr M Evans

CATCHWORDS

Compensation – Workers’ Compensation – Commonwealth employee – whether Comcare liable to pay compensation – Post Traumatic Stress Disorder – therapeutic treatment – at the direction of a legally qualified medical practitioner – craniosacral therapy – nutritional supplements – whether the treatment is medical treatment – whether the treatment is obtained in relation to an accepted injury – whether the treatment was reasonable for the Applicant to obtain in the circumstances – Clinical Framework – relevance of Clinical Framework – decision set aside and substituted with a new decision.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(1), 4(1)(b), 5A(1), 5B(1), 14(1), 16(1)

CASES

Alamos v Comcare [2014] AATA 629

Bashar and Comcare Australia (2002) 69 ALD 784

Bayani v Australian Postal Corporation [2015] AATA 342

Blackwell and Comcare [2017] AATA 1357

Comcare v Holt (2007) 94 ALD 576

Comcare v Watson (1997) 73 FCR 273

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Durham and Comcare [2014] AATA 753

Jorgensen and Commonwealth (1990) 11 AAR 543, 23 ALD 321

King and Comcare [1998] AATA 822

Napier and Comcare [2017] AATA 1452

O’Day v Comcare [2017] AATA 1328

Perich and Secretary, Department of Social Services [2018] AATA 963

Pethes and Comcare [2018] AATA 483

Rope and Comcare (2013) 135 ALD 410

Stitt and Comcare [2018] AATA 3092

Thiele v Commonwealth of Australia (1990) 22 FCR 342

Topping v Comcare [2015] AATA 525

SECONDARY MATERIALS

Concise Oxford English Dictionary, 10^th Ed

Shorter Oxford English Dictionary, 6^th Edition

Freckelton I and Selby H, Expert Evidence: Law Practice, Procedure and Advocacy (5th ed), Thomson Reuters Lawbook Co, 2013

Upleger, John E, “The Effects of Upleger Craniosacral Therapy on Post Traumatic Stress Disorder Symptomology in Vietnam Combat Veterans” 11(2) Subtle Energies & Energy Medicine 123

REASONS FOR DECISION

Senior Member Dr M Evans

THE APPLICATION

1. The Applicant was employed in a clerical position by the Department of Social Services (Centrelink) until 16 July 1993, having worked there for approximately 7 years and

   
   

   7 months (Exhibit R1, T10, pages 88 and 90).

2. On 23 October 1993, the Applicant lodged a compensation claim for “stress” (T8, pages 84-85). The Applicant described her symptoms in this claim as being “heart palpitations, blood pressure, jaw pain, “psychological”, lack of concentration, lack of memory retention, sensitive teeth” (T8, page 84). On 6 December 1993 the Respondent accepted liability for the condition of post-traumatic stress disorder (PTSD) (Exhibit R4).

3. By a determination of 10 January 2018 (Exhibit R1, T56, page 215) a delegate of the Respondent declined the Applicant’s claim, deciding that the Respondent was not liable to pay compensation to the Applicant for nutritional supplements and craniosacral therapy under s 16(1) of the Safety, Rehabilitation and Compensation Act1988 (Cth) (the SRC Act).

4. In a letter dated 2 February 2018, the Applicant requested a reconsideration of the determination of 10 January 2018, in addition to a request for an extension of time to provide further information (Exhibit R1, T57, pages 218-219).  This request was granted on 12 February 2018.  

5. In a letter dated 2 March 2018 (Exhibit R1, T60, page 224), the Applicant again requested a reconsideration of the determination of 10 January 2018. In support, she enclosed a report from her treating psychiatrist, Dr Jonathan Williams (Dr Williams), dated

   
   

   2 March 2018 (Exhibit R1, T59, pages 222-223), and medical literature regarding the “efficacy of vitamin supplementation and craniosacral therapy for the treatment of PTSD” (T60, page 224).

6. The following definition of craniosacral therapy is given in a journal article referred to by the Applicant’s Clinical Psychiatrist, Dr Williams (Upleger, John E, “The Effects of Upleger Craniosacral Therapy on Post Traumatic Stress Disorder Symptomology in Vietnam Combat Veterans” 11(2) Subtle Energies & Energy Medicine 123 in Exhibit R1, T2, page 37):

   Craniosacral Therapy is a very soft touch, hands on, treatment modality that is focused upon the removal of restrictive forces within the meningeal membrane system and all of the bones of the skull and vertebral column, including the sacrum and coccyx to which these membranes attach.

   …

   Craniosacral Therapists make use of the rise and fall of cerebrospinal fluid forces to mobilise restricted areas in the meningeal membrane system. They also use direct but gentle forces to release restricted bone motions that might impair the normal physiological accommodation of the constantly changing volume of the cerebrospinal fluid the techniques use require a high level of manual skill and sensitivity by the therapist.

   …

   …By relieving abnormal membranous tensions that may compress spinal nerve roots, brain areas, cranial nerves, pituitary stalk, etc., and by improving the flow of cerebrospinal fluid, a wide range of positive results are achieved.

   (Emphasis removed, footnotes omitted.)

7. On 3 April 2018, a Senior Review Officer of the Respondent affirmed the determination of 10 January 2018 (Exhibit R1, T62, page 229-232). This will be referred to as the Reviewable Decision.

8. On 29 May 2018 the Applicant lodged an application for a review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal) (Exhibit R1, T2, pages 5-8). 

   ISSUE

9. The Tribunal agrees with the formulation of the issue provided in the Respondent’s Statement of Facts, Issues and Contentions (SFIC). The issue that requires determination by the Tribunal is whether the Respondent is liable to pay compensation to the Applicant pursuant to s 16(1) of the SRC Act for nutritional supplements and craniosacral therapy, obtained for the purpose of treating the Applicant’s accepted PTSD condition.

10. This requires consideration of whether each treatment:

    (a)is medical treatment;

    (b)is obtained in relation to the accepted injury; and

    (c)was treatment that was reasonable for the Applicant to obtain in the circumstances.

    MATERIAL BEFORE THE TRIBUNAL

11. The hearing took place on 30 April 2019.

12. The Applicant was self-represented throughout this matter. She did not attend the hearing due to her PTSD condition. The Tribunal gave leave to the Applicant not to attend the hearing by a Direction dated 26 October 2018.  

13. Mr Hawker appeared as counsel for the Respondent, assisted by his instructing solicitor Ms Lehman, both of whom appeared in person.

14. The Tribunal admitted the following documents into evidence at the hearing:

    (a)letter from the Applicant containing submissions dated 5 April 2019 (Exhibit A1);

    (b)letter from the Applicant containing submissions dated 31 January 2019 (Exhibit A2);

    (c)s 37 Documents (T Documents) numbered T1 to T66 and comprising 361 pages (Exhibit R1);

    (d)Respondent’s SFIC dated 18 January 2019, with annexures A, B and C (Exhibit R2);

    (e)Respondent’s Statement of Issues dated 2 July 2018 (Exhibit R3);

    (f)initial determination letter, dated 6 December 1993 (Exhibit R4);

    (g)medical report of Dr Spear, dated 21 November 2018 (Exhibit R5); and

    (h)briefing letter to Dr Spear, dated 8 November 2018 (Exhibit R6).

    THE APPLICANT’S EVIDENCE

15. The Applicant submitted that the craniosacral therapy and nutritional supplements assist her in the management of the ongoing symptoms of her PTSD (Exhibit R1, pages 5-8; Exhibit A1; Exhibit A2).

16. In her application to the Tribunal dated 25 May 2018 seeking a review of the Reviewable Decision, the Applicant made the following submissions about the benefits which she receives from the nutritional supplements and the craniosacral therapy (Exhibit R1, T2, pages 5-6):

    In the letter “Reconsideration of determination” dated 3 April 2018, the list that [the delegate of Comcare] has quoted from Dr Tabrizian in her review is not a list of the vitamins and minerals that I currently take but more of a list of some of the various ones that have been trialled [sic] to manage my symptoms. I claim very little from Comcare in relation to the supplements that I take, I consistently take the compounded capsule by [name omitted] Pharmacy (which includes small amounts of ingredients that work synergistically together including zinc etc for insomnia) Magnesium powder, (well known throughout the world as a tranquilizer), B12, Methyl Folate and B6, all helping with depression, Vitamin C and Ubiquinol (from CoQ10). These could be varied from time to time depending on how well my symptoms are managed. Because of the PTSD I have in varying degrees depression, anxiety, panic attacks, insomnia and organisational challenges, I am also very sensitive to everyday stresses, including sight and sound. Nutritional supplements as mentioned and the Craniosacral Therapy helped to balance the physical effects of these stresses. My goal is to manage these symptoms and the physical changes that occur because of them, to keep myself functioning in my day to day living. Unmanaged symptoms have the potential to cause many more physical diseases so it is imperative that my management protocol is as effective as it can be. The magnitude of the symptoms can vary enormously when there is additional stress. [sic] as has been the case recently. The physical effects of PTSD are very numerous and can be very debilitating…

17. The most recent prescription before the Tribunal is not current, being dated

    
    

    28 February 2015 (Exhibit R1, page 194). However, the Tribunal notes the Applicant’s submissions in the paragraph above that she is taking zinc, magnesium powder, B12, methyl folates and B6, vitamin C and ubiquinol (CoQ10) as of 25 May 2018.

18. With respect to the craniosacral therapy, the Applicant stated (Exhibit R1, page 6):

    The Craniosacral therapy is extremely relaxing and calming for me and also helps to keep my symptoms manageable between visits. I claim one session a month and at times I pay for extra visits if I need them. Without added stressors the present supplements that I take and Craniosacral therapy, along with my own coping mechanisms enable me to function reasonably well on a day to day basis.

19. And further (Exhibit R1, page 6):

    I can assure you over the last 26 years I have made enormous improvement in my day to day functioning from literally not being able to add 2 and 2 together to reasonably ‘managing’ my symptoms using the nutritional supplements and craniosacral therapy, along with my own coping mechanisms without any added stressors. I have tried many different therapies and spent many hundreds of dollars over these last 26 years and it is the nutritional supplements and craniosacral therapy that have proven to be the most beneficial to date.

20. More recently the Applicant has submitted, in her letter dated 5 April 2019, that (Exhibit A1):

    By using alternative therapies I have been able to rise from being bed ridden to being able to function reasonably well in my day to day living, if I am not experiencing outside excessive stressors.

21. And further, in her letter dated 31 January 2019, that (Exhibit A2):

    These people [Dr Tabrizian who prescribes the Applicant nutritional supplements and Sonja Limburg who administers the Applicant’s craniosacral therapy] together with Dr Jon Williams [the Applicant’s psychiatrist] are what keep me functioning to my present capacity for dealing with the symptoms of PTSD and I cannot afford to lose this help…

    As I have previously advised no one can prove or disprove (including Dr spears [sic]) the amelioration of my PTSD symptoms through the supplementation (magnesium and prescribed capsule) that I take, or craniosacral therapy. I certainly do not take the long list of supplements as written to Dr Spear by Sparke Helmore so I have no idea why that list was sent to Dr Spear.

    I continue to purchase myself any self help programmes that either I or Dr Williams feel may further help, without requesting reimbursement.

    To my knowledge I have not seen any ‘cures’ for PTSD as the past cannot be undone so I look for symptomatic relief where I can find it to enable me to live as full a life as I am able to.

22. The Applicant went on to make the following submissions about the report by Consultant Psychiatrist, Dr Jonathan Spear (Dr Spear), discussed below, which was prepared following a request from the Respondent for an independent medico-legal assessment (Exhibit A2, page 2):

    …With respect, Dr Spears [sic] has seen me on a one [sic] only visit, when I was under extreme stress from the anticipation and the subsequent visit, most of which I am unable to remember because when I get under extreme stress, there appears to be ‘no one’ home and by looking at the report I can see that I am misunderstood by my symptoms when under extreme stress being taken as the ‘norm’.

    With the therapies that I access I am able to function reasonably well, to get by, on a day to day proposition but this changes significantly when I am under enormous stress, [sic]

    Certainly as Dr Spears [sic] states (3.4) the supplements that I do take and the cranio sacral [sic] therapy are to provide symptomatic relief, which they do. I would also anticipate not showing vitamin deficiencies if I am already taking the best dosage.

    Referring to page 8. [sic] the PTSD was caused by [the workplace incident], the craniosacral treatment is for the amelioration of the symptoms. As Dr Spears [sic] states on page 9 “craniosacral therapy is most likely relaxing for the applicant” which is precisely why I receive it, [sic]

    I am not aware at this moment of any permanent improvement regarding PTSD. My goal is the empowerment in managing the symptoms caused by PTSD.

    MEDICAL EVIDENCE

23. The Applicant’s treating Psychiatrist, Dr Williams, did not give evidence at the hearing. The T Documents do however contain numerous letters from Dr Williams, to which the Tribunal has had regard.

24. The Respondent called Dr Spear who attended in person and gave evidence in chief. The Tribunal also asked several questions of Dr Spear to clarify aspects of his evidence.

25. The difference between the Tribunal’s treatment of the evidence given by  treating medical practitioners and independent medical examiners was discussed by Deputy President Boyle and Senior Member Dr M Evans in Perich and Secretary, Department of Social Services [2018] AATA 963 (Perich). They noted the following with respect to treating medical practitioners, which they refer to as “treating health practitioners” at [37]:

    37. In their book Expert Evidence: Law, Practice, Procedure and Advocacy (Thomson Reuters Lawbook Co, 2013) at page 283-284, Professor Ian Freckelton QC and Hugh Selby discuss the advantages and disadvantages of evidence from “treating health practitioners” and “assessors who do not treat the patient”. With respect to treating health practitioners, they state (at 283):

    There are many circumstances in which a report is commissioned from a treating health practitioner. There is a fallacy that such a report is not an “expert report”. In fact, such reports are expert reports – their authors possess specialised knowledge based upon their training, study or experience (see, eg, r 44.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic)). Moreover, the facts and opinions in such reports are often particularly valuable for litigation because the treater is likely to have a longitudinal perspective in relation to the patient’s condition – for instance, detailed knowledge of the patient that spans the pre- and post-injury periods and which is uncontaminated by, or much less contaminated by, the litigation process (see Rimmer (1989, p23). An issue for such report writers is the expectation of the courts that as soon as an expert provides a report for use by the courts, the author has a primary responsibility to the court and not to be an advocate for their patient (Medical Practitioner’s Board of Victoria (2006)). This transmogrification of role is not always as well appreciated as it needs to be by treating medical practitioners but can be addressed, at least to some extent, by provision by commissioning solicitors of the relevant code of ethics or practice guidelines for expert report writers.

26. And further, with respect to reports by independent medical examiners (Perich, at [44]):

    44. Freckelton and Selby also discuss the implications of a medical report written by an “assessor”. They state (at page 283-284):

    Many reports are commissioned from assessors who do not treat the patient but are asked as part of the forensic process to provide an independent assessment of the patient. These are often called “third party reports”. The advantage of such reports is that they are generally commissioned from practitioners who are familiar with the needs and expectations of the litigation process. In addition, they are unaffected by contaminants such as therapeutic bias or treatment advocacy. However, their limitation is that they are commissioned for forensic purposes and, often, comparatively little time is spent by the assessor with the patient, meaning that the assessment is either somewhat superficial or heavily dependent upon patient self-report.

27. Thus, in evaluating the medical evidence before it, the Tribunal has considered the advantages and disadvantages of the evidence given by a treating practitioner, and the evidence given by a medico-legal expert. For example, there is a risk that a treating medical practitioner may be more inclined to accept the self-reported symptoms of a patient than an independent assessor, although the disciplines of psychology and psychiatry do rely to some extent on self-reporting, perhaps more so than other disciplines where the symptoms are physiological. However a treating practitioner also has the advantage of developing a rapport with the patient, whereby the patient may be more willing to be open and frank with them; as well as the advantage of a longitudinal perspective whereby the patient can be observed over a period of time. An independent medical assessor may, as Freckelton and Selby indicated, also be influenced by self-report, given that they may have only seen the patient on one or two occasions, or sometimes not at all when assessments are undertaken on the papers.  On the other hand, an independent assessor may be more objective because they are often able to undertake a more forensic examination of the Applicant’s medical history and records, which is not influenced by any pre-existing relationship with the patient.   

    The Applicant’s treating Psychiatrist, Dr Jonathan M Williams

28. Dr Williams’ qualifications are a Bachelor of Medicine, Bachelor of Surgery (MBBS); he is a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP); and he is a Certified Child Psychiatrist. Dr Williams has been treating the Applicant since 1993 (T12, page 94).

29. In a letter dated 11 November 2010 (Exhibit R1, T2, page 20), Dr Williams stated:

    This is a long term chronic case with no simple solutions but which can be managed with as described fairly minimal input and fairly minimal funding. She will continue to need the various treatments long-term and as recognised in the last judgement from Comcare the nutritional treatments are appropriate in supporting her ongoing functioning…

1. In a further letter to Comcare dated 4 April 2017 (Exhibit R1, T2, page 18), Dr Williams confirmed that the “ongoing diagnoses for [the Applicant] are of Post-Traumatic Stress Disorder (PTSDS) and a Panic Disorder with severe panic attacks…” Dr Williams stated the following with respect to nutritional supplements:

   … I have recommended nutritional support… This has come about originally because of [the Applicant’s] inability to tolerate normal antidepressants for the problems with sleep and the panic attacks and the benefit she gained from seeing Dr Igor Tabrizian. She describes the nutritional therapy as helping considerably with her anxiety, with sleep and with her general depression and stress levels.

2. With respect to the craniosacral therapy, Dr Williams stated in his letter of 4 April 2017 (Exhibit R1, T2, page 19 at [4]):

   She has been having regular craniosacral therapy sessions and feels these benefits [sic] her considerably. She describes these as helping her with her stress levels, her anxiety and body tension. It helps her hypertension and gives her a feeling of relaxation for at least a few days. She feels her emotional functioning is better for a period following a treatment session.

3. Dr Williams concluded that (Exhibit R1, T2, page 19):

   … I think the level of contact with her nutritional support and craniosacral therapy sounds reasonable and is obviously beneficial and appropriate to continue.

   …

   … I think her main goal is to maintain a level of stable functioning within the present situation something that can be achieved with the appropriate support and continuing backup.”

4. In a letter dated 2 March 2018 (Exhibit R1, T2, page 16), Dr Williams confirmed that the Applicant “has ongoing diagnoses of Post-Traumatic Stress Disorder, chronic and severe”. He further stated that:

   We have in the past tried antidepressant medication to try and treat her issues with PTSD, depression, panic attacks and poor sleep that she has been unable to tolerate the medication due to struggling with severe side effects.

5. Dr Williams further stated that the Applicant has “found considerable relief” and has had an “improvement in her symptoms including anxiety and sleep” from nutritional support and craniosacral therapy (Exhibit R1, T2, page 16). He stated that he had “…seen the practical results of her using these treatments with what seems to be significant benefit to her functioning” (Exhibit R1, T2, page 17). 

6. With respect to research on nutritional therapy, Dr Williams stated (Exhibit R1, T2, page 17):

   From my limited reading on Nutritional Therapy I am aware of how important nutritional matters can be in the role of neurotransmitter deficiency syndromes and subsequent mood disorders including depression, anxiety and PTSD… nutritional therapy can have impact and make a difference to mood control.

   There also does seem to be quite a lot of significant research showing positive results in using Craniosacral Therapy in PTSD with treatment for PTSD in Vietnam combat veterans…

   I would therefore strongly support [the Applicant’s] appeal for ongoing funding for her Nutritional Treatment via her specialist GP Dr Igor Tabrizian and the ongoing Craniosacral Therapy. I would disagree with Dr Spears [sic] statements that there are no indications for the use of these and would say that in fact there does seem to be significant research and increasing evidence of substantial benefits to be had from the therapies. In a situation such as [the Applicant’s] where she does not tolerate standard therapy but does seem to get significant benefit from some different approaches I think it enormously harsh to block funding for the few therapies she is able to utilise and again benefit from. I believe therefore she should have ongoing funding for these as these are the mainstay of her ongoing self-management.

   Dr Jonathan Spear, Consultant Psychiatrist

7. Dr Spear is a Consultant Psychiatrist. His qualifications include a Bachelor of Medicine and a Bachelor of Surgery (MB BS). He is a Member of the Royal College of Psychiatrists (MRC(Psych)(UK)), and a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP). Dr Spear wrote two reports concerning the Applicant. The first report was dated 27 March 2017. It was produced by Dr Spear after he examined the Applicant on 23 March 2017 (Exhibit R1, T54, pages 204-212).  The second report was a supplementary report dated 21 November 2018 (Exhibit R5). As noted above, Dr Spear also gave evidence in chief at the hearing.

8. In his report of 27 March 2017 (Exhibit R1, T54, page 205), Dr Spear confirmed that:

   The normal treatment for Posttraumatic Stress Disorder is trauma therapy delivered by an experienced clinical psychologist over 6 to 12 sessions. This might include advice on adaptive strategies, graded exposure and cognitive behavioural therapy. An alternative approach to therapy would have been interpersonal therapy. [The Applicant] has low distress tolerance and is unlikely to be able to engage successfully in trauma therapy especially given she appears to have cognitive impairment.

   This was confirmed by Dr Spear in his evidence at the hearing (see transcript, page 18).

9. With respect to the benefits of nutritional supplements in the treatment of PTSD, in his report of 27 March 2017 Dr Spear further stated (Exhibit R1, T54, page 211 at [3]):

   If the patient has low B12 or folate it may be appropriate to use B12 and folate supplements for the treatment of Cognitive Disorder. Thiamine is used to treat thiamine deficiency as the result of malnutrition or alcohol abuse, but [the Applicant] has no evidence of low B12, low folate, malnutrition or alcohol abuse. Therefore, I am not aware of any indication for the use of dietary supplements to treat her mental health condition.

10. In his supplementary report dated 21 November 2018, Dr Spear included a table which listed the supplements prescribed at various times by Dr Tabrizian, and noted whether there was scientific evidence that each medication assisted in the treatment of PTSD (Exhibit R5, pages 4-5). He recorded, “nil [evidence] evident” next to each of the medications, and then stated (Exhibit R5, page 6):

    Despite the Applicant’s preference to take various supplements it is unclear if the supplements have provided any clinical benefit in terms of symptoms or functioning given that she has ongoing symptoms of PTSD, cognitive distortions, avoidant behaviour, emotional distress, difficulty coping, decompensation, she has not worked since 1995 and she continues to require specialist outpatient treatment.

    She has no evidence of vitamin, mineral or other nutritional deficiency, but the Applicant has reported emotional distress when her claims for nutritional supplements have been declined by the Respondent.

    Therefore, on balance with consideration of the Applicant’s specific circumstances it appears most likely that none of the herbal, vitamin and mineral supplements are clinically justified as treatment for PTSD.

11. Dr Spear stated in his supplementary report that (Exhibit R5, page 11):

    Treatment with nutritional supplements appear inconsistent with the principles outlined in the “Clinical Framework for the Delivery of Health Services”.

    There is no apparent evidence of education, setting expectations, developing treatment goals and a time frame to achieve those goals, or discouraging dependence.

12. His conclusion with respect to nutritional supplements in his supplementary report was that (Exhibit R5, page 12):

    On balance, I respectfully consider that the Applicant is entitled to accept any treatment she chooses, but I do not consider that she requires nutritional supplements for the treatment of PTSD. Nutritional supplements most likely are not reasonable treatment for the Applicant to obtain under the circumstances.

13. With respect to the benefits of craniosacral therapy in the treatment of the Applicant’s PTSD, Dr Spear stated in his report dated 23 March 2017 (Exhibit R1, T54, page 211):

    I am not aware of any evidence that craniosacral therapy has any therapeutic benefit.

    I am not aware of any benefits of craniosacral therapy for Posttraumatic Stress Disorder.

    It is unclear what functional benefits there would be from craniosacral therapy.

14. In his supplementary report dated 21 November 2018, Dr Spear was critical of the study referred to by Dr Williams regarding craniosacral therapy for Vietnam veterans suffering from PTSD, which in his opinion suffered from “non-scientific style with pseudo-scientific jargon, open non-randomised design, lack of critical review by the authors, lack of reliability and validation, and subjective non-blind method of evaluation” which cast doubt on the study (Exhibit R4, page 8). After considering this and the other literature referred to by Dr Williams, Dr Spear concluded that (Exhibit R4, page 9):

    There is no convincing scientific evidence to support the use of craniosacral therapy for PTSD.

    Therefore, on consideration, craniosacral therapy is most likely relaxing for the Applicant, but it is not an evidence-based treatment for PTSD, and not justified for the treatment of the Applicant’s PTSD.

15. Further, in his supplementary report, Dr Spear further stated that (Exhibit R4, page 10):

    … I am unaware of any treatment goals or timeframe for termination of treatment with respect to the Applicant’s craniosacral therapy

    … Craniosacral therapy is most likely not part of a plan for permanent improvement in the mental health of the Applicant.

    ... I remain unconvinced by the evidence to support the use of craniosacral therapy or osteopathy for the treatment of PTDS [sic].

16. Dr Spear concluded in his supplementary report that (Exhibit R4, page 12):

    … I do not consider that she [the Applicant] requires monthly craniosacral therapy for the treatment of PTSD. Craniosacral therapy is most likely not a reasonable treatment for the Applicant to obtain under the circumstances.

17. In summary, it was the opinion of Dr Spear that both nutritional supplements and craniosacral therapy had no scientific basis for the treatment of PTSD and therefore were not reasonable for the Applicant to obtain.   

    LIABILITY OF COMCARE TO PAY FOR MEDICAL TREATMENT

18. Comcare’s general liability to pay compensation is set out in s 14(1) of the SRC Act which provides:

    (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.

19. With respect to the payment of medical treatment, s 16(1) of the SCR Act provides:

    (1)  Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

20. An “injury” is defined in s 5A(1) of the SRC Act as:

    (1)   In this Act:

    “injury” means:

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

21. A “disease” is defined in s 5B(1) of the SRC Act as:

    (1) In this Act:

    “disease” means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

22. The Respondent continues to accept liability for the Applicant’s PTSD under s 14(1) of the SRC Act. However, the Respondent submitted that it is not liable to pay for the Applicant’s craniosacral therapy or nutritional supplements. The Respondent submitted that these treatments are not medical treatments, and are not obtained in relation to the Applicant’s PTSD condition, in accordance with s 16(1) of the SRC Act. The Respondent further submitted that should the Tribunal find that the claimed treatments were medical treatments in relation to the Applicant’s PTSD condition, they are not reasonable for the Applicant to obtain in the circumstances.

    MEDICAL TREATMENT

23. Subsection 4(1)(b) of the SRC Act defines “medical treatment” to include: 

    (b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

    …

24. Further, s 4(1) defines “therapeutic treatment” as follows:

    “therapeutic treatment” includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.

25. The meaning of “therapeutic treatment” was discussed by Finn J in Comcare v Watson (1997) 73 FCR 273 (Watson) 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.

    The applicant has submitted that a treatment can only be "therapeutic" if its object is to cure a disease or injury. Though some dictionary definitions do emphasise the "healing or curative" connotation of the words "therapy" and "therapeutic": see eg Shorter OED, 3rd Ed; the latter's use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the s4 definition of "therapeutic treatment" which includes "treatment given for the purpose of alleviating an injury": [emphasis added]. The Shorter OED, for example, defines "alleviation" as "the action of lightening ... pain". That usage is an appropriate one to apply here given the s4 definition itself. And it permits a construction which accords with the beneficial purposes of the legislation: see Thiele's case, 380-381.

    To the extent that the terms might be thought to be ones having a “trade” meaning, or else are illuminated in some way by practitioners of the “trade”, I would note in passing that both the applicant's own doctor, Dr Alder and an occupational physician, Dr Scott, described Ms Watson's program as variously “therapeutic in nature” or as “therapeutic”.

    The only additional comments I would make on this are, first, that therapeutic treatment in this setting is a purposive activity - ie its purpose or object must be the treatment of the particular injury in question. If such is not the actual, specified purpose of the activity then notwithstanding its beneficial effects, it will not relevantly be therapeutic treatment for present purposes. Secondly, because such treatment is purposive, an indicator that a doctor-prescribed activity is intended, relevantly, to be therapeutic will commonly be the adoption of some level of monitoring of it to gauge whether it is appropriately adapted to its purpose or is effective in some degree in realising that purpose. Obviously the nature and extent of such monitoring will be affected significantly by the nature of the treatment. Some forms of treatment may require close checking; others may well be self-monitored, once prescribed. I mention this simply to caution against the view that a doctor's positive and active control and management are indispensable elements in treatment.

    (Emphasis added.)

26. Justice Finn’s comments in Watson were cited with approval by Madgwick J in Bashar v Comcare (2002) 69 ALD 784 (Bashar) at 785:

    9. … It is perfectly clear from what Finn J said and, with respect, I agree with his Honour, that the purpose of the treatment must be therapeutic. Further, it is perfectly clear that his Honour was saying, and again, with respect, I agree with him, that the notion of therapeutic treatment includes merely palliative treatment, what his Honour referred to as, "the alleviation of the pain of an injury". It may or may not be relevant to the case but, in the context of a statute such as this, the notion of "therapeutic" might well also include a further extension, namely, treatment for prophylactic or preventative purposes, that is to say, to prevent the pain, or other effects of an injury from becoming worse or from appearing.

    10. The Tribunal Member apparently relied on Finn J's remarks for the following proposition which immediately followed the quotation of those remarks in the Tribunal Member's decision:

    "If the applicant's physiotherapy treatments do relieve his pain then they can to that extent be described as medical treatment under the Act. It is not essential they lead to a complete cure or resolution of his condition."

    In other words, the Tribunal Member shifted from a consideration of the purpose of the treatment to a consideration of the effects of it and thought that he was giving effect to what Finn J had said in Comcare v Watson.

    11. In the treatment of work injuries and in cases about compensation for such injuries, few things are more common than that medical treatment of one kind or another that has been undertaken does not work or even, commonly enough, worsens the condition complained of. There was ample material, indeed, it would seem an overwhelming preponderance that the physiotherapy treatment, although provided so regularly and for so long, was nevertheless aimed at producing beneficial results in relation to the applicant's complaints that he alleged stemmed from his compensable injury. If it were the case that these had had no effect in relieving his pain, this alone would not resolve the matter and it would not mean that the physiotherapy treatments were not treatment under the Act.

    12. The fact if it were a fact, that they had had no discernible effect would be a matter that would bear, and might bear powerfully in the context of all of the evidence, on the question of whether it was, or continued to be, reasonable for the applicant to obtain such treatment in the circumstances. But those circumstances would be all the circumstances in which the applicant found himself.

    (Emphasis added.)

27. The Tribunal notes that “palliative” is defined in the Concise Oxford English Dictionary, 10^th Ed as “relieving pain or alleviating a problem without dealing with the cause”; and in the Shorter Oxford English Dictionary, 6^th Edition to include “A thing which gives superficial or temporary relief; a thing which palliates a disease, suffering, etc.”

28. Watson, Bashar and other relevant authorities were summarised by Member Webb in Rope and Comcare (2013) 135 ALD 410 (Rope) at 417, [30]-[32]:

    30. As Hill J observed in Thiele’s case, ‘treatment’ for the purposes of paragraph (b) of the definition is not confined to treatment under medical supervision, although an activity “does not become treatment merely because it is advised, prescribed or ordered by a medical practitioner”. This formulation was accepted by Finn J in Comcare v Watson when construing the phrase ‘at the direction of’ in paragraph (b) of the definition, noting that the direction must be to obtain ‘therapeutic treatment’ – “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”. In Bashar v Comcare Australia, Madgwick J adopted this formulation and said “... in the context of a statute such as this, the notion of ‘therapeutic’ might well also include a further extension, namely, treatment for prophylactic or preventative purposes, that is to say, to prevent the pain, or other effects of an injury from becoming worse or from appearing”.

    31. These cases amply demonstrate the proper conception of ‘treatment’ within the meaning of ‘medical treatment’ and ‘therapeutic treatment’ under s 4(1). In respect of therapeutic treatment, there is no requirement that the treatment must be provided or supervised by a medical practitioner, although it must be obtained at the direction of a legally qualified medical practitioner. Treatment is a purposeful activity designed, or aimed at, curing or alleviating an injury in which, as Nimmo J said, a person does something in the exercise of his or her skill which is designed to alleviate an injury.

    32. It does not follow that any particular therapeutic treatment to be undertaken at the direction of a medical doctor in a course of medical treatment must be imbued with an intrinsic medical quality or feature. The meaning of ‘therapeutic treatment’ is not expressly confined to an activity that is intrinsically medical in nature, although in the usual run of cases therapeutic treatment may have a medical character; the essential requirement is that the treatment must be therapeutic. It is not difficult to conceive of many examples of therapeutic activities or devices that do not have any intrinsic medical quality, and that are not designed to alleviate an injury, that nonetheless may be applied for a medical or therapeutic purpose in the context of treating an injury. There is nothing intrinsically medical about a ball for example, but a ball may be put to a medical or therapeutic purpose when treating an injury, perhaps to improve muscle control or hand to eye coordination. If one considers the example of an exercise or gym program – the program may be one that involves activities commonly undertaken by people in pursuit of fitness, but the quality that renders it therapeutic is the extent to which the program is applied or undertaken for the purpose of treating a particular injury.

    (Emphasis added. Footnotes omitted.)

    In Rope, the Tribunal found that the Applicant was entitled to compensation in respect of the costs of attending mindfulness classes as directed by her treating doctor.

1. The distinction between treatment “by, or under the supervision” and “at the direction” of a medical practitioner is assisted by the following passage from the decision of Hill J in Thiele v Comcare (1990) 22 FCR 342 at 347:

   … it is, in my view, possible, that a particular activity constitutes "treatment" notwithstanding the doing of that act may not be under medical supervision. Indeed one of the differences between paragraph (a) and paragraph (b) of the definition is that the medical or surgical treatment must be "by, or under the supervision" of the doctor to fall within paragraph (a) whereas the therapeutic treatment referred to in paragraph (b) need only be shown to have been obtained "at the direction" of the doctor. Certainly what his Honour said may well be characterised as going beyond what was necessary to the facts of the case before him. But in any event, it is unnecessary to decide this issue in the present case because the provision of a pool is not itself treatment and it does not become treatment merely because it is advised, prescribed or ordered by a medical practitioner.

2. In Watson, Finn J discussed the meaning of “at the direction of” at 276:

   The formula, "at the direction of", in this setting contains an imperative element - by which I mean a doctor prescribes a specified course to be taken. That course in turn must be therapeutic treatment. In Thiele's case, above, for example, the doctor prescribed (inter alia) the construction of a swimming pool of particular specifications for the purpose of swimming exercises of a person suffering a spinal injury. And the issue was not whether a direction had been given to construct a pool, but rather whether the provision of the pool was itself therapeutic treatment. Justice Hill held it was not and, importantly, that:

   "it does not become treatment merely because it is advised, prescribed or ordered by a medical practitioner": Thiele v Commonwealth of Australia, at 382.

   For my own part I would be prepared to adopt the "advised, prescribed or ordered" terminology of Hill J as representing the proper meaning to be given to the "at the direction of" formula in the s4 definition - these terms having relatively well understood and not greatly dissimilar connotations in the context of doctor-patient communications as to the undertaking of treatment for an injury. In consequence I reject not only the Tribunal's apparent construction of the formula as meaning "guidance" - I also reject the applicant's submission that direction requires monitoring, control or management by a doctor.

3. The Tribunal notes the evidence of the Applicant that the nutritional supplements assist her to manage her symptoms, and consequently to function in her day-to-day living (see above, paragraph [15-22]).  As stated by the Applicant, as a result of the nutritional support and craniosacral therapy she has “been able to rise from being bed ridden to being able to function reasonably well in my day to day living” (paragraph [20] above).

4. This was supported by the Applicant’s treating Psychiatrist, Dr Williams, who stated that the “nutritional treatments are appropriate in supporting [the Applicant’s] ongoing functioning” because she cannot tolerate normal antidepressants (see above paragraph [30] and [33]). Further, Dr Williams stated that she has “found considerable relief” and “significant benefit to her functioning” from nutritional support and craniosacral therapy (see above paragraph [32]).

5. The Tribunal therefore finds that the Applicant’s nutritional supplements and craniosacral therapy are “therapeutic treatment” within the meaning of s 4(1) of the SRC Act because they are courses of treatment “given for the purpose of alleviating” the debilitating symptoms of the Applicant’s PTSD injury (Watson, Rope). These treatments give the Applicant relief from her PTSD symptoms including relieving her symptoms of depression, anxiety and improving her sleep, making her symptoms less “overwhelming” and allowing her to “deal reasonably with day to day life and manage her personal business unless triggered by a stressful event” (T2, page 16) and are therefore “palliative treatment” (Bashar).

6. In the Tribunal’s opinion the Applicant’s treating Psychiatrist, Dr Williams, can be said to have “prescribe[d] a specific course to be taken” (to use the wording from Watson at 276). Specifically, Dr Williams stated that “I have recommended nutritional support” (see above, paragraph [30]), and that “I would therefore strongly support [the Applicant’s] appeal for ongoing funding for her nutritional treatment via her specialist GP Dr Igor Tabrizian and the ongoing Craniosacral therapy” (see above paragraph [35]). Dr Williams further stated that the nutritional supplements and craniosacral therapy were “obviously beneficial and appropriate to continue” (see above paragraph [32]). The Tribunal regards these statements as a clear indication that both the nutritional supplements and craniosacral therapy were “obtained at the direction of a legally qualified medical practitioner” (being
   Dr Williams) within the meaning of s 4(1)(b) of the SRC Act.

   OBTAINED IN RELATION TO THE PTSD CONDITION

7. The Respondent has submitted that the treatments claimed by the Applicant are not related to the accepted PTSD condition because, according to the evidence of Dr Spear, the nutritional supplements are not clinically justified in the treatment of PTSD; and there is no convincing scientific evidence to support the use of craniosacral therapy in the treatment of PTSD (Exhibit R2, paragraph [4.10]). However, with respect, these submissions are more relevant to the reasonableness of the treatments in terms of their effectiveness on the underlying condition, which is considered below. 

8. The Tribunal finds that the nutritional supplements and craniosacral therapy are medical treatments obtained by the Applicant in relation to the accepted PTSD injury. There is no evidence before the Tribunal to suggest that the treatments are being undertaken for any other condition or injury that is not related to the accepted PTSD injury. Indeed, the evidence of both the Applicant and Dr Williams indicate that the sole purpose for which the Applicant is obtaining these treatments is in relation to her PTSD condition.

   REASONABLE TO OBTAIN IN THE CIRCUMSTANCES

9. In Stitt and Comcare [2018] AATA 3092 (Stitt), which concerned whether ongoing physiotherapy treatment was reasonable medical treatment under s 16(1) of the SRC Act, Deputy President Boyle referred to the decision of Pethes and Comcare [2018] AATA 483 (Pethes). In Pethes the Tribunal explained that what is considered reasonable will depend on the facts and circumstances of the individual case, viewed objectively. The Tribunal stated (at [36]-[37]):

   36. The ultimate issue facing the Tribunal, therefore, is whether Mrs Pethes’ massage treatment is reasonable for her to obtain in the circumstances.

   37. Section 16, and the tests it imposes, does not require reasonableness to be considered in absolute terms but in view of the circumstances the particular employee faces – what may be considered as reasonable treatment in the circumstances of one person suffering a certain injury may not be reasonable treatment in the circumstances of another person suffering the same injury. Gray J in Jorgensen and Commonwealth [1990] AATA 129; (1990) 23 ALD 321 at [12] said, in relation to s 16(1):

   The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of the applicant for compensation.

   (Original emphasis, footnotes omitted.)

10. The Respondent referred (at Exhibit R2, paragraph [4.17]) to Jorgensen and Commonwealth of Australia (1990) 11 AAR 543, 23 ALD 321 (Jorgensen) where Gray J stated at [12]:

    In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from the particular injury. The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation. Were it to be otherwise, decision-makers would be faced with questions of great difficulty, such as whether the appearance of a particular person prior to suffering injury was such as to make it unreasonable to consider cosmetic surgery, or whether repair of a particular injury was appropriate only for persons in some occupations or classes or geographical areas, but not for others.

11. The Respondent also referred (at Exhibit R2, paragraph [4.21]) to the Tribunal’s decision in King and Comcare [1998] AATA 822, in which the Tribunal found that certain vitamin and mineral supplements did not constitute medical treatment that was reasonable for the Applicant to obtain in the circumstances. The Tribunal referred to the objective test stated by Gray J in Jorgensen (at [24]):

    In determining whether a particular form of treatment is objectively reasonable, applying the test enunciated by Gray J in Jorgensen, we think allowances should be made in appropriate cases for different schools of thought within the medical profession. If a particular form of treatment is advocated by a significant minority of the medical profession, and is regarded by the majority as controversial, we do not think obtaining that form of treatment would not ordinarily be regarded as unreasonable. If, on the other hand, a patient undertakes treatment on the advice of a doctor whose views are at odds with the rest of the medical profession, one would have to conclude that it was not reasonable to obtain such treatment in the circumstances. Whether a particular form of treatment in particular circumstances enjoys sufficient support within the medical profession to be regarded as reasonable is a question of degree.

    (Original emphasis.)

12. Guidance as to whether treatment was reasonable for an employee to obtain in the circumstances was given by Deputy President Constance in Alamos and Comcare [2014] AATA 629 (Alamos) at [24] in the context of long term physiotherapy treatments. The Deputy President stated:

    Without intending the list to be exhaustive, some of the factors which may be relevant considerations in the circumstances are:

    the benefit of the treatment to the injured worker;

    the long-term effect of the treatment;

    whether the treatment is likely to cure the injury or significantly reduce its effects;

    whether the treatment maintains the status quo;

    the cost of ongoing treatment.

    (Original emphasis.)

13. The Respondent also referred to the Revised Version of the Clinical Framework for the Delivery of Health Services produced by Work Safe Victoria (the Clinical Framework) (Exhibit R2, Annexure C). The Forward to the Clinical Framework states that its purpose is:

    … to support healthcare professionals deliver the right care at the right time to individuals with a compensable injury.

    The Clinical Framework outlines a set of guiding principles for the delivery of health services. These principles are intended to support healthcare professionals in their treatment of an injury through:

    ·Measurement and demonstration of the effectiveness of treatment

    ·Adoption of a biopsychosocial approach

    ·Empowering the injured person to manage their injury

    ·Implementing goals focused on optimising function, participation and return to work

    ·Base treatment on best available research evidence

14. The Respondent made the following submission about the Clinical Framework in paragraph [4.26(a)] of Exhibit R2: “The respondent contends that the Clinical Framework is an appropriate benchmark by which the objective reasonableness of medical treatment can be measured and is consistently cited by the Tribunal”. The Respondent cited several decisions in which the Tribunal has applied this framework, including:

    ·Alamos;

    ·Topping v Comcare [2015] AATA 525 (Topping);

    ·Bayani v Australian Postal Corporation [2015] AATA 342 (Bayani);

    ·Napier and Comcare [1998] AATA 1452 (Napier);

    ·Blackwell and Comcare [2017] AATA 1357 (Blackwell); and

    ·O’Day v Comcare [2017] AATA 1328 (O’Day).  

15. With respect to whether the Tribunal should apply policy, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)), Brennan J stated at 642:

    In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.

16. Later in his judgment, Brennan J (at 645) explained how the Tribunal should apply ministerial policy when reviewing administrative decisions:

    In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.

    When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.

17. However, the Clinical Framework is not a ministerial policy. The nature of the Clinical Framework was noted by Senior Member Ettinger in Durham and Comcare [2014] AATA 753 (Durham) at [56]:

    56. In coming to a decision, I am mindful of section 16, and the concept of reasonable medical treatment, and the ‘Clinical Framework for the Delivery of Health Services’ which is a joint presentation of the Victorian Transport Accident Commission, Worksafe Victoria and the State Government of Victoria. I note that it is not official Commonwealth Government policy, but appropriate as a reference.

18. Although the Clinical Framework was not intended to assist in the interpretation of claims for medical treatment under the SRC Act, or in the interpretation of relevant provisions of the SRC Act, it is nevertheless appropriate as a reference, and has been frequently applied in decisions of this Tribunal. This is because it is relevant in assessing whether medical treatment is reasonable, in that it sets out guiding principles for healthcare professionals who are providing that treatment. Care should be taken to ensure that the Clinical Framework is not inflexibly applied, and to ensure that the merits and evidence in the individual applicant’s case are carefully and objectively considered.

19. The Respondent referred to Deputy President Constance’s reliance in Alamos on the Clinical Framework when affirming a decision of Comcare to cease funding the Applicant’s physiotherapy treatment (Exhibit R2, paragraph [4.14]), where the Deputy President stated:  

    33. One of the stated principles in the Clinical Framework is to “empower the injured person to manage their injury.” It says in part:

    The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.

    34. This is consistent with previous decisions of this Tribunal. In Re Popovic and Comcare, the Tribunal said:

    In relation to the applicant’s claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant’s current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short-term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic. However in this case any benefit is outweighed by the counter-productive effect with leading the applicant to a dependent state, inhibiting his ability to learn to cope, and embark on pain management programs to assist him with that object. [Authorities omitted].

    35. Furthermore, in Chowdhary and Comcare, the Tribunal held that:

    ...there is no evidence of any plan to have physiotherapy treatment accompanied by a course of physical exercise such that the applicant might become re-conditioned and better able to cope with pain and manage a return to work. While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee.

    (Original emphasis, footnotes omitted.)

20. The Respondent also referred to Durham at [62], in which the continued provision of an applicant’s physiotherapy over a 17 year period was considered with reference to the Clinical Framework. Senior Member Ettinger stated:

    62. I am satisfied from the evidence of the Applicant himself, and all the doctors whose evidence was before me, that there has been no consistent progressive improvement in Mr Durham’s back over the last 17 years. He has become habituated to the physiotherapy, even though he has managed with one session or less a week since December 2013. In considering the application of the case law (Re Popovic and Comcare and Comcare v Rope and Comcare v Holt), and the cost benefit argument, I find that long term physiotherapy such as Mr Durham has had has no place. The ‘Clinical Framework for the Delivery of Health Services’ deals with independence and self management, which has been hampered by Mr Durham’s dependence upon twice weekly Commonwealth funded physiotherapy. I am satisfied that the correct or preferable decision is to affirm the decision of the Respondent of 14 August 2013.

21. Whether there are alternate treatments available, and the comparative costs of those treatments, may also be relevant in assessing the unreasonableness of a treatment. The following passage from the decision of Mansfield J in Comcare and Holt (2007) 94 ALD 576 (Holt) at [25]-[26] is relevant:

    25. I agree that it would have been erroneous for the AAT generally to declare that the therapeutic treatment is unreasonable only if Comcare establishes that there is alternative treatment with equivalent therapeutic benefit available at a lower cost. There may be circumstances where treatment is unreasonable because its anticipated therapeutic benefit does not justify the expense involved in the circumstances. Section 16(1) of the SRC Act does not indicate that a proposed treatment is reasonable unless alternative treatment of more or less equivalent therapeutic benefit and at a lesser cost is shown by Comcare to be available. That is consistent with the approach of Stone J in Rope. Of course, it will be common for the reasonableness of proposed medical treatment to be assessed in the light of alternative treatment options, but that is not necessarily so. There might be cases where the cost of the proposed treatment, even if no other treatment options were available, would lead to the view that the proposed treatment is unreasonable having regard to its anticipated benefit. Such a circumstance is, of course, likely to be uncommon if only because treating medical practitioners generally act responsibly and with sound medical judgment.

    26. It is plain enough that sometimes proposed therapeutic treatment will be unreasonable because there is some alternative treatment available with potentially similar benefits at a lesser cost. There may be a balancing involved where the potential therapeutic benefits are less, but the cost is significantly less. The extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant. There may be cases, as Comcare points out, where proposed treatment, although of therapeutic benefit, is unreasonable having regard to the extent of the anticipated benefit of the cost involved, even if no similar treatment had previously been undertaken. There may be cases, also as Comcare points out, where treatment like the proposed treatment which in the past has had some therapeutic benefit may no longer be reasonable because the extent of the therapeutic benefit no longer justifies the cost in the light of past experience: see e.g. Bashar v Comcare [2002] FCA 837; (2002) 69 ALD 784. There may be other illustrations of facts relevant to the determination of reasonableness of proposed medical treatment.

    27. However, in my view, the remarks of the AAT complained of must be seen in the context of the particular case. The context of the case, as explained above at [12] is that Comcare claimed that the treatment was not reasonable in the circumstances for two specific reasons, namely the availability of alternative treatment with potentially similar therapeutic benefits and at a much lesser cost either at home, or otherwise in Alice Springs. That was the primary case which the AAT was called upon to address and it did so. In my view, its comments in the passage of concern to Comcare must be read in that context. If they were to be read as supporting the general proposition set out at the concluding part of its reasons. I would agree that the AAT had fallen into error.

    (Original emphasis.)

1. The Respondent referred to the decision of Senior Member Tavoularis in Napier. In Napier the Senior Member weighed the benefit of physiotherapy treatment to the Applicant against the cost of the physiotherapy to Comcare and its ability to empower the Applicant (see paragraph [28]). In his decision, Senior Member Tavoularis noted that (at [27]):

   While I have no doubt that her physiotherapists were bona fide trying to help her, their treatment models all had themselves – her physiotherapists – at their centre. Even when they recognised that they could have no rehabilitative effect on her conditions, they nevertheless endorsed courses of treatment that relied more on recurring visits on the physiotherapists than on promoting independence in the Applicant. Physiotherapy has thus become for the Applicant a form of reactive, passive treatment.

   (Original emphasis.)

2. The “cost benefit analysis” that the Tribunal is required to undertake when considering whether medical treatment is reasonable was also noted by Stone J in Rope, at [17]:

   …the reference in s 16(1) to treatment being ‘reasonable to obtain in the circumstances’ is a clear indication that, in this case, the Tribunal was required to engage in a costs/benefit analysis in relation to PNI [psychoneuroimmunology] treatment. The Tribunal needed, among other things, to weigh the benefit of PNI treatment against the cost of obtaining it (given that the treatment was available only in Townsville), taking into account any other treatment available to Mrs Rope. I am not, however, convinced that the Tribunal neglected to do this.

3. Similarly, in Topping at [52]-[53], the Tribunal stated:

   52. …the Tribunal takes the view that some object of measurable improvement in Ms Topping’s psychological outlook is necessary to weigh in the scales brought forth by s 16 against the ongoing cost to the taxpayer of these treatments. That measurable improvement is difficult to discern on the facts before us.

   53. In undertaking the cost/benefit analysis referred to in Rope and Holt, the Tribunal must also consider the likely ongoing cost of the treatment which is the subject of Ms Topping’s application. Noting the evidence of Dr Lean that Ms Topping is likely to require massage and osteopathy indefinitely, counsel for the Respondent calculated (using analogous Supreme Court tools) the future lifetime cost to be $67,146 for treatment, not including the cost of travel. Counsel for Ms Topping disputed the relevance of this figure; it is clear nonetheless that a significant ongoing cost is associated with the treatments.

4. In Stitt, Deputy President Boyle considered whether physiotherapy continued to be reasonable, given that the Applicant had been receiving physiotherapy treatments for approximately 20 years. He relevantly stated, at [79]:

   79. Applying the principles emerging from these cases, what are the circumstances that make the treatment proposed by the 2017 and 2018 physiotherapy plans “reasonable” or not? Given that for around 20 years physiotherapy treatment and exercises to relieve pain and to improve function was accepted as reasonable, what, if anything, has changed to make that treatment no longer reasonable? The obvious change is the emergence of the view that the Applicant would be better treated under a multidisciplinary pain management regime coupled with the fact that it seems apparent now that the Applicant’s underlying condition will not improve with continued physiotherapy alone.

5. In this regard, the Respondent referred to the decision of Senior Member Tavoularis in Blackwell, in which the Senior Member stated at [18]-[19]:

   18. I also consider that “in the circumstances”, though indicative of a subjective test, does not connote that a decision-maker should assess what is reasonable treatment as being fixed in time. The point of this test being subjective is that decision-makers should take into account changes in the circumstances surrounding the injury – particularly if the treatment is effective. What was initially reasonable treatment may become unreasonable long-term treatment. This long-term perspective is particularly important when one considers the potential long-term dependency of applicants upon treatments that were only ever meant to be temporary, as the Tribunal noted in Popovic and Comcare.

   19. This notion of shifting reasonableness is supported by the Tribunal’s decision in Chowdhary and Comcare, where it found that:

   “While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement in the health of the employee”.

   (Footnotes omitted.)

6. This now brings the Tribunal to its consideration, based on these authorities and the Clinical Framework, of whether the Applicant’s nutritional supplements and craniosacral therapy are reasonable for her to obtain in the circumstances. As noted by the Tribunal in Pethes (at [37]) the question of reasonableness “involves objectivity” but must also be viewed against the particular circumstances faced by the Applicant.

7. In this regard, the Tribunal notes the long term nature of the Applicant’s PTSD condition, which she has suffered from since approximately 1992. The evidence regarding the nature of the injury (Jorgensen) suggests that she is likely to continue to suffer from PTSD into the future. Relevantly, Dr Williams noted that this was a “long-term chronic case with no simple solutions” (see above, paragraph [29]). Dr Spear noted in his initial report that the Applicant “appears unlikely to make a recovery in the foreseeable future even with further treatment” (Exhibit R1, T2, page 22). Consequently, the Tribunal observes that any plan for a complete or substantial recovery is unlikely to be realistic in the Applicant’s situation, and that the likely best case scenario is that she is able to manage her symptoms so as to improve her day-to-day functioning. Indeed, the Applicant stated that, “My goal is to manage these symptoms and the physical changes that occur because of them, to keep myself functioning in my day to day living” (Exhibit R1, T2, page 6).

8. Also specific to the treatment of the Applicant’s PTSD injury is her inability to tolerate antidepressant medication, which otherwise could have helped to relieve her symptoms (see comments from Dr Williams at paragraphs [30] and [33] above). Consequently, the Tribunal notes on the evidence before it that were the nutritional supplements and craniosacral therapy not funded, the Applicant may be left without any treatment other than the sessions with her treating psychiatrist, Dr Williams.

9. The Tribunal notes that, with regard to the benefit to the Applicant of nutritional supplements (see Alamos at [24]), Dr Spear’s view was that (Exhibit R5, page 6):

   …it is unclear if the supplements have provided any clinical benefit in terms of symptoms or functioning given that she has ongoing symptoms of PTSD, cognitive distortions, avoidant behaviour, emotional distress, difficulty coping, decompensation, she has not worked since 1995 and she continues to require specialist outpatient treatment.

   …

   it appears most likely that none of the herbal, vitamin and mineral supplements are clinically justified as treatment for PTSD.

10. Similarly, Dr Spear commented that he was not aware of any evidence that craniosacral therapy has any therapeutic benefit, including for the treatment of PTSD (see above paragraph [36]).

11. However, Dr Spear’s view is in contrast with that of the Applicant’s treating psychiatrist,

    
    

    Dr Williams, who described the “significant benefit to her functioning” as a result of the nutritional supplements and craniosacral therapy (see above, paragraphs [34] and [35]). As noted above, the Applicant also described her functional improvement, from being bedridden to being able to function reasonably well in her day-to-day living through the use of these therapies (see above, paragraph [20]).

12. The long-term effect of the treatment, and whether the treatment is likely to cure the Applicant’s PTSD or significantly reduce its effects, are also relevant factors to consider in assessing reasonableness (Alamos at [24]). As discussed above, the Applicant is likely to continue to suffer from PTSD into the future, and she is unlikely to be cured. The evidence from the Applicant and Dr Williams suggests that although she is unlikely to make a complete recovery, the treatments have the effect of maintaining the status quo in that they help the Applicant to manage the symptoms of her PTSD and function in her daily living. The following comment from Member Webb in Rope is relevant:

    51.The proposition that a plan for the permanent improvement of an injury is required in order to find that a particular form of medical treatment is reasonable for an injured employee to obtain lacks merit. Medical treatment and therapeutic treatment, for the purposes of the 1988 Act, consistent with the definition of those terms in s 4(1), may include treatment to alleviate the symptoms of an injury and palliative or preventative treatments. Treatments of that kind are unlikely to appear in a plan for the permanent improvement of an injury. Some injuries cannot be permanently improved, and I do not accept that it would not be reasonable for a permanently injured employee to obtain palliative or preventative medical treatment on the basis that the treatment was not part of a plan for permanent improvement.

    (Emphasis added.)

13. The Tribunal finds that it would be unreasonable to discontinue the Applicant’s treatments, simply on the basis that she is unlikely to be cured or to have the effects of her PTSD significantly reduced when the likely best case scenario for her is to manage her symptoms so that she can function in her day-to-day living.

14. Comcare has been paying for nutritional supplements since approximately 1997 totalling $16,992.36 (see Exhibit R2, Annexure A). The Respondent also submitted (Exhibit R2, paragraph [4.25(f)(iii)]) that between 13 September 2011 to 15 December 2017 the Applicant received approximately 72 sessions of craniosacral therapy at approximately $65 per session (Exhibit R1, T63, pages 233-255). In Alamo, Deputy President Constance also referred to cost as a relevant factor in assessing the reasonableness of medical treatment (see also Rope and Topping). Dr Spear’s evidence at the hearing was that the normal treatment for PTSD is “cognitive behavioural therapy based trauma therapy” (transcript, page 18). There is no information before the Tribunal as to whether

    
    

    Dr Williams has undertaken trauma therapy with the Applicant in the past, and as to what

    
    

    Dr Williams’ opinion is about its suitability for the Applicant. Even if this treatment was a suitable alternative for the Applicant, there is no evidence about comparative costs (Holt). The Applicant is currently 69 years of age. She has one craniosacral therapy session per month costing $65, which would amount to $780 per year. The figure of $16,992.36 worth of supplements supplied between 22 January 1992 to 16 January 2019, equates to approximately $630 per year. In the Tribunal’s opinion this is not an unreasonable sum. This is especially given that the Applicant, whose PTSD is likely to be long lasting, cannot tolerate traditional antidepressants which would relieve her symptoms, and (according to Dr Williams) her symptoms are substantially relieved and managed by these treatments.

15. The Tribunal notes the evidence of Dr Spear that it is “most likely” that nutritional supplements are not clinically justified for the treatment of the Applicant’s PTSD. This would be contrary to Principle Five of the Clinical Framework, which requires that treatment be based on the best available research evidence. Further, Dr Spear noted that while craniosacral therapy was relaxing for the Applicant, it was his opinion that it is not an evidence-based treatment for PTSD (see above paragraphs [42] and [43]). However, the evidence of the Applicant’s treating psychiatrist, Dr Williams, is that “nutritional therapy is helping considerably” and that the Applicant has “found considerable relief” from both therapies. Dr Williams stated that he had “seen the practical results of her using these treatments”, and that the Applicant reported that “her emotional functioning is better for a period following a treatment session” (paragraphs [31] and [34]). This evidence is consistent with Principle One of the Clinical Framework which requires treatment to have a measurable benefit to the injured person. Overall, the Tribunal prefers the evidence of Dr Williams because he has a longitudinal perspective of being the Applicant’s treating Psychiatrist over many years, and is better placed to comment on the improvements in functioning experienced by the Applicant. Taking this evidence into account, the Tribunal finds that, on balance, these therapies have resulted in a measurable improvement to the Applicant’s outlook (Topping).

16. The Tribunal accepts the Applicant’s evidence that craniosacral therapy “helps to keep my symptoms manageable between visits”, and assists her to “function reasonably well on a day-to-day basis”. The Tribunal notes that the Applicant described making “enormous improvement in my day to day functioning”, and went from being “bed ridden” to “being able to function reasonably well” (paragraphs [18], [19], [20]). This is consistent with Principle Three of the Clinical Framework which provides that the treatment should empower the injured person to manage their injury.  Further, the Applicant’s evidence indicates that these therapies assist her to achieve her “main goal”, stated by

    
    

    Dr Williams as being “to maintain a level of stable functioning” (paragraph [32]). This evidence is, in the Tribunal’s opinion, consistent with the biopsychosocial approach to injury management stated in the Clinical Framework (Principle Two). Such an approach is “effective in improving function, facilitating recovery and maximising independence” (Clinical Framework, page 39 in Exhibit R2, Annexure C). Accordingly, the Tribunal finds that, based on the evidence of the Applicant and her treating Psychiatrist, nutritional supplements and craniosacral therapy assist to empower the Applicant to manage the symptoms of her PTSD and to maximise her independence.

17. The Clinical Framework (Principle Five) provides that “Healthcare professionals need to use the best available medical research evidence to inform their decision making” (Exhibit R2, Annexure C, page 48). As noted in paragraph [93] above, the evidence of Dr Spear was that the available medical evidence does not support the use of nutritional supplements or craniosacral therapy for the treatment of PTSD. Applying this principle of the Clinical Framework, a lack of scientific evidence tends to suggest a lack of reasonableness. However, this Principle can be contrasted with the other Principles in the Clinical Framework, which support a conclusion that the use of nutritional supplements and craniosacral therapy to treat the Applicant’s PTSD are reasonable in her specific circumstances. These Principles are the effectiveness of the treatment (Principle One), the biopsychosocial approach (Principle Two), empowering the injured person to manage their injury (Principle Three) and implementing goals focused on optimising function (Principle Four). Consequently, on balance, the Tribunal finds that the nutritional supplements and craniosacral therapy are reasonable for the Applicant to obtain in the circumstances.

    CONCLUSION

18. In the context of this particular application, the Tribunal finds that the nutritional supplements and craniosacral therapy are medical treatment in relation to the Applicant’s PTSD injury that are reasonable for her to obtain in the circumstances.

19. Therefore, the Respondent is liable to pay compensation to the Applicant pursuant to

    
    

    s 16(1) of the SRC Act for nutritional supplements and craniosacral therapy, obtained at the direction of Dr Williams for the purpose of treating the Applicant’s accepted PTSD condition, subject to claim and to periodic review.

20. This decision is not intended to set a precedent that alternative therapies in general are compensable under s 16(1) of the SRC Act. Whether they will be compensable will depend on a range of factors specific to the facts, circumstances and medical evidence in each individual case.

    DECISION

21. The Reviewable Decision, being the decision of a delegate of the Respondent dated

    
    

    3 April 2018, is set aside.

22. The Tribunal substitutes a new decision that the Respondent is liable to pay compensation pursuant to s 16(1) of the SRC Act for nutritional supplements and craniosacral therapy, being therapeutic treatments obtained at the direction of the Applicant’s legally qualified psychiatrist, Dr Williams, for the purpose of treating the Applicant’s accepted PTSD condition.

I certify that the preceding one-hundred (100) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

....................................[sgd]....................................

Associate

Dated: 17 September 2019

Date of hearing:	30 April 2019
Applicant:	Self-represented
Counsel for the Respondent:	Mr M Hawker
Solicitors for the Respondent:	Sparke Helmore