ZXCF and Comcare (Compensation)

ZXCF and Comcare (Compensation) [2018] AATA 3017 (21 August 2018)
Division:GENERAL DIVISION
File Numbers: 2017/3349 and 2017/3615
Re:ZXCF
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:21 August 2018
Place:Perth

The Reviewable decision dated 18 May 2017 is affirmed.
..........................[sgd]...................................
Senior Member Dr M Evans
CATCHWORDS
Workers’ Compensation – Commonwealth employee – injury sustained prior to 1988 – reasonable medical expenses – chiropractic treatment – mild whiplash injury – prolapsed disc – whether treatment obtained is in relation to the workplace injury or for pre-existing degenerative changes which are unrelated to the injury – whether Applicant presently entitled to medical expenses – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1), s 34J
Compensation (Commonwealth Government Employees) Act 1971(Cth) – s 27(1),
s 29(1), s 37(1)
Safety, Rehabilitation and Compensation Act 1988(Cth) – s 16(1), s 60(1), s 62(1),
s 62(2), s 62(5), s 64(1), s 124(1A)
CASES
Alamos and Comcare [2014] AATA 629
Chowdhary and Comcare [1998] AATA 448
Cremona and Comcare [2015] AATA 971
REASONS FOR DECISION
Senior Member Dr M Evans
21 August 2018
BACKGROUND

The Applicant is a 68 year old woman who was employed by the Department of Social Security (the Department) from April 1985 (T30). She ceased her employment with the Department in September 1995 (T40).
The Applicant sustained a lower back injury while she was moving files at work on 20 January 1986 (T3, T30 page 68). Liability was accepted under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act) for a “prolapsed disc”, following this incident (T4, page 15).
On 22 May 1986, when the Applicant was driving to work, she was involved in a motor vehicle accident (T6). The Applicant suffered “whiplash-type injuries to her cervical and thoracic spine” (T40 page 80, T53).
The Applicant made a claim for compensation for injuries sustained in this motor vehicle accident on 22 May 1986 (T7). Liability was accepted under the 1971 Act for “mild whiplash injury on 22/5/86 whilst on a journey to her employment” (the accepted injury) by a delegate of the Commissioner for Employees’ Compensation on 25 June 1986 (T8).
The Applicant was suffering from pre-existing degenerative changes in her spine as early as 1986 (T9). Liability was not accepted for these degenerative changes.
In a report dated 8 December 2017 (Exhibit R2, page 2), Dr John D H Bell (Dr Bell), a Consultant Orthopaedic Surgeon, noted that the Applicant “…has been on a pension for about the last 20 years”.
Dr William S C Chow (Dr Chow), the Applicant’s general practitioner, issued the Applicant with yearly Comcare Medical Review Certificates certifying the Applicant totally unfit for work, citing her whiplash injury from the motor vehicle accident, including from: 17 September 2010 to 17 September 2011 (T53, page 167); 9 September 2011 to 9 September 2012 (T53, page 168); 7 September 2012 to 7 September 2013 (T53, page 169); 4 September 2013 to 4 September 2014 (T53, page 173); 9 September 2014 to 9 September 2015 (T53, page 174) and 4 September 2015 to 4 September 2016 (T41, page 81).
On 5 August 2016, Dr Chow completed a further Comcare Medical Review Certificate certifying the Applicant as totally unfit for work from 5 August 2016 to 5 August 2017 (T43). Dr Chow stated in this Certificate that the injury was a probable consequence of: “motor vehicle accident – aggravating prolapsed lumbar disc and whiplash”. The Certificate further stated that the therapeutic treatment currently required was “daily exercises” and “chiropractic treatment as required”.
By a determination dated 6 April 2017 (T46), the Respondent accepted liability under s 16 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for “reasonable expenses based on Comcare’s fee schedule for consultations with your General practitioner, for your compensable condition” and “chiropractic treatment once per month until 5 August 2017”.
By a further determination dated 6 April 2017 (T47), the Respondent accepted liability to pay for the accounts of the Applicant’s chiropractic treatments dated 18 January 2017 and 2 February 2017, however refused to pay for accounts for the Applicant’s chiropractic treatments dated 23 January 2017, 27 January 2017 and 30 January 2017. On 9 March 2017 and 6 April 2017, the Respondent asked the Applicant for medical certificates or other medical evidence to support these accounts (T4, page 22 and 24). The Applicant stated in response that she had to change chiropractors, and that her new chiropractor wanted her to have more frequent visits for a short time (T4, page 26), but she did not provide supporting medical evidence for these additional chiropractic visits.
In a letter to the Respondent dated 18 April 2017 (T48), the Applicant requested a reconsideration of the determination dated 6 April 2017 with respect to the non-reimbursement of the additional chiropractic visits.
In a letter to the Applicant dated 18 May 2017 (T50), a Review Officer of the Respondent advised that she had reviewed the determination of 6 April 2017 and:
(a)with respect to the Applicant’s request for a review of the determination of 6 April 2017 to decline liability for the Applicant’s chiropractic treatments dated 23 January 2017, 27 January 2017 and 30 January 2017, the Review Officer affirmed the determination; and
(b)the Review Officer had also undertaken an “own motion” reconsideration of the acceptance of monthly chiropractic treatment and general practitioner consultations in the determination of 6 April 2017. The Review Officer varied the determination, finding that “I am no longer satisfied that chiropractic treatment is reasonable medical treatment for your compensable condition”, but affirmed acceptance of liability for general practitioner consultations.
This will be referred to as “the Reviewable Decision”.
In this same letter, the Review Officer noted that, with respect to the chiropractic treatment, although Dr Chow had been issuing yearly medical certificates certifying the Applicant unfit for work, he had not “provided any reports or investigation results which provide clinical justification to support that there is a continued relationship between the conditions causing present symptoms to that of the injury which occurred in 1986” (T50, page 100).
Further, with respect to the chiropractic treatment, the Review Officer stated that “[t]here is insufficient evidence to conclude that you continue to sustain the effects of your compensable condition. Whilst you continue to experience symptoms, there is presently no clinical justification to support that the symptoms continue to be as a result of the workplace injury of 1986” (T50, page 100).
The letter from the Respondent continued on to state “…having considered the available medical evidence, I find that you have no present entitlement to compensation for continued chiropractic treatment”. The Tribunal notes that, as liability for chiropractic treatment was accepted up to 5 August 2017 in the determination of 6 April 2017, the Tribunal does not have jurisdiction to review beyond 5 August 2017 as part of this application.
The Applicant made an application to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 30 May 2017, stating that she was requesting a review of the Respondent’s decision not to reimburse for future chiropractic treatment (T3). The Applicant was contacted by the Tribunal by letter on 9 June 2017, which requested that she more clearly identify the decision she wanted reviewed (T4, pages 12-13). In a letter to the Tribunal dated 14 June 2017 (T4, page 11), the Applicant identified that she was seeking review of the Reviewable Decision of 18 May 2017.
JURISDICTION
The jurisdiction of the Administrative Appeals Tribunal is established by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which states:
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Section 64(1) of the SRC Act provides that:
(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth—the Commonwealth; or
(c) if the decision affects a Commonwealth authority—the Commonwealth authority; or
(d) if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.
A “reviewable decision” is defined in s 60(1) of the SRC Act as “a decision made under subsection 38(4) or section 62”. The Reviewable Decision of 18 May 2017 was a decision made under s 62(5) of the SRC Act (following a request from the Applicant under s 62(2) of the SRC Act and an own motion reconsideration of the determination under s 62(1) of the SRC Act). Consequently, the AAT has jurisdiction to review the Reviewable Decision.
ISSUE
The issue which requires determination by the Tribunal is whether the Respondent is liable to pay the cost of monthly chiropractic treatment sessions until 5 August 2017, and in particular, for the chiropractic treatments dated, 23 January 2017, 27 January 2017 and 30 January 2017.
This issue requires consideration of whether:
(a)the chiropractic treatment is “medical treatment”; and
(b)if so, whether the claimed chiropractic treatment is obtained “in relation to” the accepted injury; and
(c)if so, whether the claimed chiropractic treatment was treatment that was “reasonable in the circumstances for the Applicant to obtain”.
APPLICABLE LAW
Liability for the “mild whiplash injury” was accepted under the 1971 Act (T8).
Section 27(1) of the 1971 Act provides:
If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.
“Injury” is defined in s 4 of the 1971 Act as follows:
‘injury’ means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29, does not include a disease or the aggravation, acceleration or recurrence of a disease;…
Further, s 37(1) of the 1971 Act provides:
Where an injury is caused to an employee, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that it was reasonable in the circumstances for the employee to obtain, compensation of such amount as is appropriate to that medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment is obtained. [Emphasis added.]
Section 37(1) of the 1971 Act is similar to s 16(1) of the SRC Act, which provides:
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.
Section 5(1) of the 1971 Act defines “medical treatment” to include: “therapeutic treatment obtained at the direction of a legally qualified medical practitioner”. This would include the Applicant’s chiropractic treatment which was recommended by Dr Chow (T3, page 10; T4, page 21; T53, pages 173-174).
The relevant transitional provision is s 124(1A) of the SRC Act, which provides:
Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.
MATERIAL BEFORE THE TRIBUNAL
This matter was heard “on the papers”, pursuant to s 34J of the AAT Act following a request from the Applicant, which was agreed to by the Respondent.
The Respondent filed the following documents with the Tribunal, which the Tribunal admitted into evidence:
(a)Section 37 documents numbered T1 through to T54 (Exhibit R1);
(b)Statement of Facts, Issues and Contentions dated 5 March 2018 (Exhibit R2);
(c)A Report from Dr Bell concerning the Applicant, dated 8 December 2017 (Exhibit R3).
Although the Applicant was given leave to do so in a Tribunal Direction dated 7 February 2018, she did not file a response to the Respondent’s Statement of Facts, Issues and Contentions. The Applicant did, however, file the following documents with the Tribunal:
(a)a letter to the Tribunal dated 20 December 2017 in response to Dr Bell’s Report (Exhibit A1);
(b)two pages printed from an internet page titled “Thoracic Outlet Syndrome – Treatment” (Exhibit A2);
(c)three pages printed from another internet page titled, “Thoracic Outlet Syndrome: Dr Richard J Sanders, author of the book “Thoracic Outlet Syndrome”, describes the cause, diagnosis, and treatment of TOS” (Exhbit A3);
(d)a “Comcare Medical Review Certificate (Ex-Employee)” completed by Dr Chow dated 17 September 2010, certifying the Applicant unfit for work from 17 September 2010 to 17 September 2011 (Exhibit A4);
(e)a one page handwritten letter from Dr Chow dated 13 June 2017, addressed “To whom it may concern” (Exhibit A5);
(f)Cervical and Lumbar Spine Test results for the Applicant dated 30 June 2017 from Perth Radiological Clinic (Exhibit A6);
(g)CT Lumbar Spine Results for the Applicant from SKG Radiology dated 5 March 2015 (Exhibit A7);
(h)a letter to the Respondent’s legal representative undated, but received by the Tribunal on 18 July 2017 (Exhibit A8); and
(i)a letter from Dr Jonathan M Williams, Consultant Psychiatrist dated 11 July 2017 (Exhibit A9).
TREATMENT OBTAINED IN RELATION TO THE INJURY
The Applicant submitted that prior to the two workplace incidents in 1986, she had no back or neck problems (Exhibits A1 and A8), and that she suffers pain in her neck, head and shoulder, and from a syndrome called “Thoracic Outlet Syndrome” which she believes is caused by whiplash (Exhibit R1, T3, page 9). She believes that it is reasonable for her to be compensated for medical treatments, including for chiropractic visits (Exhibit A1), which assist her to manage “flare ups” (Exhibit R1, T3). The Applicant evidently believes that her ongoing chiropractic treatment is in relation to the accepted injury.
The Respondent, on the other hand, submitted that “the medical treatment namely the chiropractic treatment is not obtained in relation to the injury and that any symptoms now suffered by the Applicant result from her underlying degenerative condition and not the accepted injury” (Exhibit R2, paragraph 4.8).
This requires an examination of the medical evidence before the Tribunal to determine whether the chiropractic treatment is obtained in relation to the accepted injury or for degenerative changes which are not in relation to the injury.
The Applicant submitted a handwritten letter dated 13 June 2017 from Dr Chow (Exhibit A5, also reproduced at T4, page 27), in which he stated “I am of the opinion that chiropractic therapy is not unreasonable medical treatment for her [the Applicant] due to progression of her degenerative cervical spine and lumbar disc disease and should be allowed to continue as required once a month.” The Tribunal observes that there is nothing in this statement to suggest a connection between the accepted injury and the need for chiropractic treatment; however, it does refer to degenerative changes.
Similarly, other evidence submitted by the Applicant confirms degenerative changes, but does not show the extent of the connection, if any, between the accepted injury and the need for chiropractic treatment. The Applicant also submitted cervical and lumbar spine test results dated 30 June 2017 which stated under the heading “clinical details”: “ongoing neck and lower back pain secondary to past trauma to neck and lumbar spine” (Exhibit A6). This report refers to substantial degenerative changes. The Applicant also submitted CT lumbar spine results dated 5 March 2015 (Exhibit A7), which, under the heading “comment” noted: “Gross degenerative changes in the lumbar spine with decreased disc space heights and disc bulges”.
Further, the evidence before the Tribunal that was submitted by the Respondent (as contained in Exhibits R1 and R3), suggests that there is no longer any connection between the injuries sustained more than 30 years ago and the need for chiropractic treatment until 5 August 2017. The evidence suggests that the chiropractic treatment is in relation to pre-existing degenerative changes in the Applicant’s spine. This evidence includes:
(a)the Applicant was suffering from pre-existing degenerative changes in her spine as early as 1986. In a report by Dr Douglas G Sneddon (Dr Sneddon), Orthopaedic Surgeon, dated 20 December 1986 (Exhibit R1, T9, pages 39-40), Dr Sneddon noted that he first examined the Applicant on 4 June 1986 and that “x-rays of the cervical spine showed degenerative disc space narrowing at the C6/7 level with posterior osteophyte formation. This change was of long standing and present prior to the accident in May 1986.” Dr Sneddon further noted, after examining the Applicant again on 2 July 1986, “degenerative changes are also seen on the L4/5 facet joint on the right side.” In his report, Dr Sneddon further stated that the Applicant:
… Has evidence of underlying degenerative changes of the cervical spine and lumbar disc disease, both present prior to the MVA of May 1986, and both of these problems were aggravated by the MVA.
There is no treatment necessary at the present time and I think her symptoms will settle spontaneously, although the prognosis must be guarded because of the degenerative changes found in her cervical and lumbar spine (Exhibit R1, T9, page 40).
(a)Degenerative changes are also referred to in a letter from Sir George Bedbrook dated 17 March 1988 who stated that “x-rays from 1986 show early degenerative changes in the segment of L4/5 both in the facet and disc. It also shows some degenerative changes in the C6/7 and also C5/6” (Exhibit R1, T13, page 45).
(b)In a letter dated 15 March 1991 (Exhibit R1, T30, page 68), Violet Stojanovic, Rehabilitation Counsellor, noted that the Applicant “was successfully treated with epidural injections”, following her January 1986 accident.
(c)Degenerative changes in the Applicant’s spine are also referred to in the report of Dr Bell, dated 8 December 2017 (Exhibit R3). Dr Bell stated in his report that “I believe that degenerative changes in her neck and low back are causing the continuing symptoms. It is difficult to relate her continuing symptoms to the original soft tissue injuries in 1986” (Exhibit R3, page 5). Additionally, Dr Bell stated that “… [the Applicant] has continuing discomfort problems in her neck and low back. She has considerable underlying degenerative change in her neck and low back. It is difficult to find any strength of relationship between her continuing neck and low back problems and her particular soft tissue injuries which occurred more than 30 years ago.”
(d)Dr Bell further stated that “it is difficult to assess that her original January 1986 and May 1986 injuries require continuing treatment”, and “[i]t is difficult to support the view that for the last two decades that her spinal problems continued to relate significantly to those of January 1986 and May 1986 injuries” (Exhibit R3, page 7). Dr Bell also stated that the Applicant’s “… current condition has been superseded by degenerative changes in her spine, which are considerable, as assessed by her imaging investigations.”

After considering the evidence outlined above, the Tribunal is not persuaded that the chiropractic treatment was obtained in relation to the accepted injury. The evidence suggests that the Applicant is no longer suffering from the effects of the accepted injury as at 5 August 2017, and that the chiropractic treatment was in relation to the degenerative changes in the Applicant’s spine, and not in relation to the accepted injury.
TREATMENT THAT WAS “REASONABLE IN THE CIRCUMSTANCES FOR THE APPLICANT TO OBTAIN”
As the Tribunal has found that the chiropractic treatment was not obtained in relation to the accepted injury, it is not strictly necessary for the Tribunal to address this issue. However, the Tribunal will do so as part of a comprehensive consideration of the application before it.
The Applicant submitted documents from internet pages regarding treatment for “Thoracic Outlet Syndrome” (Exhibits A2 and A3). Exhibit A2 includes chiropractic treatment in a list of therapy options for which a person suffering from the syndrome “may want to try”. Exhibit A3 does not discuss chiropractic treatment, but does mention that “[m]ost people with TOS will improve with stretching and physical therapy.” However, Thoracic Outlet Syndrome does not appear to relate to the injury for which liability was accepted by the Respondent, and is not mentioned in the other medical documentation before the Tribunal, including the report of Dr Bell dated 8 December 2017. Additionally, the Tribunal must prefer the conclusions about the appropriateness of medical treatment in the report of Dr Bell, a Consultant Orthopaedic Surgeon, which was specifically written about the Applicant, over general internet sources.
The relevant medical evidence suggests that chiropractic treatment is not appropriate, and may even be counter-productive to the Applicant’s overall spinal health. In his report dated 8 December 2017, Dr Bell commented on the medical treatment that the Applicant required:
Further treatment, I consider, is best advised along conservative, non-operative lines, with the use of spinal education and exercise programs. Improvement of muscle tone with lumbar flexion exercises should help. Isometric and range of movement exercises for her neck should also help, as should shoulder shrugging and shoulder stretching. Improvement of the posture and flexibility should assist her. Improvement of circulation with activity within the limits of discomfort, and by improved nutrition should be of further assistance. Symptomatic measures of heat, ice and Dencorub would provide additional relief and are probably preferable to medication intake. Bending her knees when lifting and twisting to take the pressure off her spine should help the healing process (Exhibit R3, page 8).
Dr Bell further commented that “[t]here can be adverse effects from… manipulation” and “[i]t is not my opinion that treatment by manipulation is appropriate, especially given the severity of her underlying degenerative change shown on recent imaging in June 2017” (Exhibit R3, pages 9 and 10).
In Chowdhary and Comcare [1998] AATA 448, Senior Member Bayne and Member Miller stated at [53], in the context of physiotherapy treatment, 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; (cf Re Payne and Comcare (Decision No 11624, 19 February 1997, at para 21ff).
Further 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 at [24]. 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.
Additionally, in Cremona and Comcare [2015] AATA 971 at [13], Senior Member McCabe (as he then was), when considering whether medical treatment was reasonable for the Applicant to obtain in the circumstances, took into account medical evidence which confirmed the treatment was counter-productive.
With respect to the Applicant, Dr Bell’s report suggests that chiropractic treatment is of limited benefit to the Applicant, could have an adverse effect, and is not likely to result in any permanent improvement. Dr Bell stated that “…[the Applicant] has had symptoms now for more than 30 years and I’m not sure that (sic) if she is likely to improve significantly” (Exhibit R3, page 9). The Tribunal therefore concludes that, even if it did find that the claimed chiropractic treatment was obtained in relation to the injury, it was not reasonable in the circumstances for the Applicant to obtain.
CONCLUSION
The Tribunal has a great deal of sympathy for the Applicant who has evidently been suffering from the effects of a degenerative spinal condition for some 30 years, as well as other medical issues. She clearly believes that her spinal issues are the result of her workplace accidents in January and May 1986, and has found the process of seeking review of the decision stressful, resulting in her inability to participate in the Tribunal processes. There is, however, very little evidence before the Tribunal to support the Applicant’s position. Indeed, the weight of the evidence presented by the Respondent persuades the Tribunal that the correct and preferable decision is to affirm the reviewable decision of 18 May 2017.
DECISION
For the reasons outlined above, the Reviewable Decision dated 18 May 2017 is affirmed.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

.............................[sgd]..........................................
Administrative Assistant Legal
Dated: 21 August 2018

Date of hearing: Hearing on the papers

Applicant:

Solicitors for the Respondent:

Self-Represented

Sparke Helmore Lawyers

[2018] AATA 3017

21 August 2018

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