Safety Rehabilitation and Compensation Act 1988 s 16

Alamos v Comcare [2014] AATA 629

Comcare v Rope [2004] FCA 540; (2004) 135 FCR 443

Comcare v Holt [2007] FCA 405; (2007) 94 ALD 576

Excell and Comcare [2010] AATA 104

Popovic and Comcare [2000] AATA 264

Clinical Framework for the Delivery of Health Services

1. Mr Darryl Durham is a consultant in sport, aged 52. He worked at the Australian Sports Commission for 17 years until his redundancy in May 2012. Mr Durham injured his lumbar spine in the course of his work when lifting a suitcase from a carousel in July 1996. Liability pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act), was accepted by Comcare. He has since had aggravations in 2005 and again on 12 March 2006, which is the date of injury of the accepted condition for the purposes of this application. He has been provided with more than 500 physiotherapy treatments since the injury in 1996. Following his redundancy in May 2012, he set up a sports consultancy.
2. Mr Durham's claim is that he requires continuing physiotherapy treatments to maintain his back, without which he would not be able to work. Comcare ceased paying for physiotherapy in December 2013 following a graduated decrease in sessions available to Mr Durham.
3. Mr Durham was not satisfied with the decision, and has exercised his right to appeal to the Tribunal.
4. Mr Durham gave oral evidence at the Tribunal, as did his physiotherapist, Mr G Backen, and Dr P Wilkins, an occupational physician, who had examined him on two occasions and prepared reports in 2012 and 2013 (Exhibit A4). A medical report of Dr G Griffith, a consultant surgeon, dated 25 April 2014, (Exhibit R7), and medical reports in the T-documents were also tendered.
5. I considered the evidence, the application of section 16 of the Safety Rehabilitation and Compensation Act 1988 (the Act), and the cost benefit argument. I have decided to affirm Comcare's decision of 14 August 2013. My reasons follow.

1. The issue before the Tribunal is whether the correct or preferable decision is to affirm, set aside or vary the reviewable decision of Comcare dated 14 August 2013 to cease paying for physiotherapy treatment for Mr Durham by 15 December 2013.

1. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular section 16 which provides for reasonable medical treatment. I am satisfied that the physiotherapy for which Comcare has been paying falls within the definition of section 16 of the Act.

The Applicant evidence and his counsel's submissions

1. Mr Durham provided a statement dated 6 December 2013 (Exhibit A1), and a further statement dated 15 August 2014 (Exhibit A2). He told me about his injury, which he described as a central and left disc protrusion at L5/S1**.** I noted that the reviewable decision described the accepted condition as aggravation of displacement of intervertebral disc - lumbar and major depressive disorder, single episode.
2. Mr Durham said that he presently works in his sports consultancy three full days, and two half days per week.
3. Mr Durham's evidence is that he suffers constant lower back pain varying in severity between painful and extremely painful. In his statement at Exhibit A1, he detailed the pain in his left hip, left buttock, left knee, left calf, left leg, left foot and left toes. The pain in those areas appears to fluctuate. He has found that two sessions of physiotherapy per week, and the exercise he performs privately assist with maintaining him at work.
4. Mr Durham said since Comcare ceased paying for the physiotherapy, he now pays for one to two sessions per week, although he cannot always attend due to work commitments. He takes the medication prescribed by his general practitioner Dr Morton, attends the podiatrist every 18 months (next appointment due in six months), and has not undertaken psychological counselling since late 2013 due to his wife's illness. He said that last year had been particularly difficult as his wife had a major illness, her mother died, and their son had surgery. He said that whilst undertaking the major carer role at home, he tried to maintain his work and exercise routine, but found that his problems were impacting on his pain. He acknowledged that weight reduction would assist, and told me he was seeing a dietician the week after the hearing.
5. Mr Durham gave evidence of a period of five weeks after he had been seen by Dr Griffith in which he trialled managing without physiotherapy. He said that this during this time his pain had worsened, and he had difficulties sitting for long periods of time.
6. I noted the medical certificate of Dr Morton dated 4 August 2014 in which she certified Mr Durham fit for modified duties from 19 July 2014 to 23 January 2015 on the basis of his aggravation of work related lumbar disc injury. Major depressive disorder.
7. Mr Durham wrote in his statements regarding the benefits of physiotherapy, which he corroborated in his oral evidence.:

Given my present working situation I gain great benefit from the mobilisation that occurs within my physiotherapy session. I find that this consistent mobilisation assists with maintaining my present level of functionality and my ability to work. When I have missed my physiotherapy treatment due to work commitments within my own business, I have found that my symptoms and pain levels have increased dramatically, especially in regards to my lower back pain and sciatic nerve pain down my left leg.

1. Mr Durham also told me that his condition and functional capacity is the same as it was two years ago. This was corroborated by his physiotherapist, Mr G Backen. Mr Backen was asked whether Mr Durham would be worse off without having physiotherapy at all, given his condition was essentially the same as two years previously, and he was now having half the number of treatments. Mr Backen's reply was that Mr Durham derived benefit from physiotherapy, and that he still suffers significant episodes of pain with which the physiotherapy could assist. He explained that these flare-ups were volatile, and there was an acute onset, for example, when he was coaching basketball.
2. I noted that the MRI scans dated December 1996, April 2006, February 2009, and May 2013 all indicate that Mr Durham's physical condition remains unchanged.
3. Mr Durham gave evidence that his back pain could arise from strenuous activity, and that he was unable to lift heavy objects. When questioned about a notation in the clinical notes of Mr Backen, indicating that the pain in his lower back was worse since he installed a washing machine on 9 April 2013, Mr Durham said that his sons had helped him.
4. Mr Durham also explained that he can do certain of the exercises at home, and walks some distance regularly, but that there are certain interventions which the physiotherapist undertakes which he cannot do on his own. Mr Backen's evidence corroborated Mr Durham.
5. Mr Anforth, of counsel who represented him, submitted that the purpose of the application was not to assert that physiotherapy would cure Mr Durham's condition, but that it would maintain him at a level where he could continue to function and carry out his work. He emphasised that Mr Durham was not seeking incapacity payments. The submissions regarding the role of the physiotherapy were corroborated by the evidence of Dr P Wilkins, an occupational physician whose reports were before me, and who gave oral evidence as well as Mr Backen. Dr Wilkins acknowledged that if only one session of physiotherapy a week was maintaining Mr Durham, then things may have changed somewhat. He emphasised that physiotherapy was not curative in this case, but noted that the benefit of it was that it kept Mr Durham working. Mr Anforth urged upon me a wait and see approach, submitting that a decision to continue with physiotherapy which could be reviewed at any time, was appropriate.
6. Mr Anforth acknowledged the medical reports in which their authors asserted that long term passive therapy such as physiotherapy did not provide a cure, submitting however, that Mr Durham's case was a special one in which the Applicant remained full-time in the employ of the Commonwealth following his injury, and has since been fully employed in his private consultancy. There was a cost benefit to the Commonwealth involved, Mr Anforth submitted, as without physiotherapy, the consequence of which being that Mr Durham could not work, he would be seeking some $1,200 per week in section 19 payments up until retirement age. In that connection, I had before me an actuarial table as Exhibit R9.
7. Mr Anforth also submitted that attendance at a pain clinic for a trial two weeks could be attempted in order to assist Mr Durham.

1. Mr Backen provided an extensive CV and report along with Mr Durham's attendances (Exhibit A3). He corroborated the Applicant's evidence and submissions indicating that the physiotherapy provided to was not curative, but that it maintained his ability to work. He said that he did not know how Mr Durham would cope if he stopped having physiotherapy altogether, but added that his practice provided not only physical but psychological assistance, and allowed Mr Durham to function more normally.
2. Mr Backen was referred to Exhibit R3, the 'Clinical Framework for the Delivery of Health Services', and the emphasis on fostering independence espoused there. Mr Backen acknowledged that physiotherapy could reinforce the sick role, and agreed that self-funded patients attended his practice for shorter periods than those funded by the Commonwealth.

Dr P Wilkins, consultant occupational physician

1. I had before me reports of Dr Wilkins dated 4 December 2012 (T26), and 17 December 2013 (Exhibit A4). Dr Wilkins also gave oral evidence by telephone.
2. Dr Wilkins detailed Mr Durham's incidents of injury in 1996, 2005 and 2006. He described the 1996 injury as occurring when Mr Durham lifted a suitcase from a carousel, straining his back, with resultant radiological evidence of disruption of the L4/5 disc. He also described the 2005 injury which was, according to Dr Wilkins, more severe, and accompanied by left sciatic pain radiation. Dr Wilkins noted from further radiological investigations, that, on that occasion, Mr Durham suffered a prolapse of the L5/S1 disc with entrapment at the S1 nerve root. He also noted that there was an L5/S1 broad-based disc protrusion impinging on the left S1 nerve root. He also commented on the 2006 injury in which Mr Durham injured his back again when he lifted a case from a carousel, exacerbating his mechanical and neurological backache.
3. Dr Wilkins reported Mr Durham describing his pain particularly located in his lower back and left buttock, also in his toes and from time-to-time like a hot poker impaling his left foot. He added that Mr Durham reported trouble with prolonged sitting, or standing, squatting, lifting or carrying.
4. Dr Wilkins stated that Mr Durham reasonably requires medical treatment, both analgesia and passive therapies such as those delivered twice weekly by his physiotherapist. Dr Wilkins also stated that he agreed with Dr Bentivoglio, an orthopaedic surgeon who examined Mr Durham, that physiotherapy is usually only of significant benefit in the case of acute injuries. He opined however, that given the nature of Mr Durham's chronic spinal condition, and the consensus among surgeons he has consulted, that conservative treatment is the best way of managing his pain, then it was reasonable that the physiotherapy regime should continue. He added that without those treatments Mr Durham would not be able to work, whereas with them, although he continues to suffer significant levels of pain, he is able to work.
5. In his oral evidence, Dr Wilkins agreed that if one session of physiotherapy a week (which Mr Durham now pays for), maintained him, and weight loss as suggested by Dr Griffith assisted, then things may have changed since he had assessed Mr Durham.
6. Dr Wilkins emphasised that physiotherapy was not curative, but that there were exercises and treatments Mr Durham could not do at home. When asked whether Mr Durham had become dependent on the physiotherapy, Dr Wilkins answered that he is not a psychiatrist, and he does not subscribe to cookbook medicine, i.e. one size fits all. As to dependence, he agreed that the principles espoused in Exhibit R3, Clinical Framework for the Delivery of Health Services were good.
7. Dr Wilkins acknowledged that a pain clinic, a loss of weight and other measures which he did not explore may be of assistance to Mr Durham. He concluded that Mr Durham's lumbar spine had not changed in 17 years, and that physiotherapy could not, and would not, cure it. It was however, a support which keeps him at work, he said.

Dr I Kelman, consultant orthopaedic surgeon

1. I am mindful that Dr Kelman who examined Mr Durham in May 2008, concluded as follows:
   • He should achieve his ideal body weight
   • He should maintain fitness by attendance at a gymnasium
   • He should commence a core strengthening program such as that provided by Pilates, Tai Chi and Feldenkrais
   • He should undertake fitness activities and core strengthening activities on a daily basis for the rest of his life and he should be made responsible for this.
2. Dr Kelman also opined that the prognosis was moderately good provided Mr Durham abide by the above rehabilitation program, adding that under most circumstances patients fail to appreciate the need that the above program requires daily and life-long attention.

1. Dr Bentivoglio examined Mr Durham at Comcare's request, in July 2013. He noted that Mr Durham has ongoing discal damage at the L5/S1 level of his lumbar spine dating from the injury to his back in 1996. He noted that on the day of examination, there was no evidence of any nerve root irritation or compression to suggest Mr Durham would benefit from more aggressive forms of treatment. His report indicated that Mr Durham has permanent weakness at the L5/S1 level of his lumbar spine that will continue causing him problems in the future.
2. Dr Bentivoglio stated that he agreed with Drs Kelman and Coyle that Mr Durham's condition remained exactly the same as it was in 1996.
3. Dr Bentivoglio opined:

The only active treatment he is having is physiotherapy. He has been doing this twice per week. Physiotherapy is an acute modality of treatment and is no longer efficacious for his back symptoms. I do not believe it to be a reasonable and necessary form of treatment at this stage.

1. Dr Bentivoglio also suggested that Mr Durham do an exercise based program to build up core muscle strength, and suggested swimming and walking.

Clinical Panel Review- Mr Harry Papagoras, physiotherapist

1. Mr Papagoras, whose qualifications are similar to those of Mr Backen, conducted a 'Clinical Panel Review' in April 2013, applying the 'Clinical Framework for the Delivery of Health Services', and including a consultation with Mr Backen. As a result of the Panel recommendations, it was noted that:
   • the current treatment Mr Durham was receiving was primarily passive, and provided twice weekly over a long period;
   • despite this, Mr Durham was still symptomatic and not improving;
   • the provision of this treatment was not consistent with elements of the 'Clinical Framework for the Delivery of Health Services', as it did not empower Mr Durham to take a greater role in self management;
   • it was suggested that the treatment should reduce over a graduated period leading to a greater role in self management.
2. The result was that the reviewable decision of 14 August 2013, reduced the physiotherapy treatments over a period of time to cessation on 15 December 2013.

1. Dr Griffith examined Mr Durham in April 2014. When asked by the Respondent regarding what benefit Mr Durham derives from physiotherapy, Dr Griffith replied as follows:

If physiotherapy has not resulted in consistent progressive improvement in symptoms in not longer than three months, it cannot be justified on a cost/time/benefit basis. ... self- directed exercises made known to the sufferer by the physiotherapist during the period of physiotherapy treatment designed to strengthen cores musculature and paravertebral muscles is the key to success, not passive treatment from third parties.

1. Dr Griffith concurred with Mr Backen's opinion that where insurers carry the cost of physiotherapy, and there are no financial implications for the individual receiving it, there is no real motive for it to be reviewed.
2. Dr Griffith also stated that he concurred with the opinions of those by whom Mr Durham has consulted that there was no justification for indefinite physiotherapy.

1. In coming to a decision regarding whether the correct or preferable decision is to affirm, vary or set aside the decision of Comcare of 14 August 2013, I have taken into account Mr Durham's evidence, that of the doctors who have examined him, the evidence of his physiotherapist, the 'Clinical Framework for the Delivery of Health Services' and the other documents before me.
2. I note it was agreed between the parties, and I accept that Mr Durham suffered three compensable injuries in 1996, 2005 and 2006, as described in the paragraphs above. Mr Durham is a person who has been active in the sports world, and has suffered both physical and psychological pain as a result of his physical activities being curtailed by his injuries. He has however, following redundancy from the Australian Sports Commission, and to his credit, been able to establish a sports consultancy at which he currently works three full days and two half days a week. During 2013, he also suffered some personal problems, most significantly, the illness of his wife, which has caused him further pain. In regard to those, I express my sympathies.
3. I note that Mr Durham has consulted his general practitioner, Dr S Morton regularly, and been prescribed medication for Type II diabetes, and pain. He has also attended at Mr Backen's practice twice a week from the time of the injury in 1996 to 13 December 2013, when a graduated reduction on physiotherapy provided by Comcare ceased. That has cost, according to Comcare's Statement of Facts and Contentions, approximately $65,647.65 for 631 sessions of physiotherapy. There were other periodic related expenses such as visits to a podiatrist and psychiatrist.
4. The requirement of section 16(1) of the Act is that for compensation to be payable in respect of the cost of medical treatment obtained in relation to an injury, the treatment must reasonable for the employee to obtain in the circumstances .... In considering this requirement, it is necessary to consider all of the circumstances, and not only the beneficial effects experienced by Mr Durham.
5. I noted that Deputy President Constance in the matter of Alamos v Comcare [2014] AATA 629 at [24] stated that 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.
6. In a Comcare 'Clinical Panel Review', dated 15 April 2013, conducted by Mr Papagoras, it was noted that:
   • the current treatment Mr Durham was receiving was primarily passive, and twice weekly over a long period;
   • despite this, Mr Durham was still symptomatic and not improving;
   • the provision of this treatment was not consistent with elements of the 'Clinical Framework for the Delivery of Health Services', as it did not empower Mr Durham to take a greater role in self management;
   • it was suggested that the treatment should reduce over a graduated period leading to a greater role in self management.

1. I refer to the following medical reports where these items are addressed. I note that Dr Wilkins agreed with Dr Bentivoglio that physiotherapy is usually only of significant benefit in the case of acute injuries. He opined however, that given the nature of Mr Durham's chronic spinal condition, and the consensus among surgeons he has consulted, that conservative treatment is the best way of managing his pain, then it was reasonable that the physiotherapy regime should continue. He added, reinforcing the submissions of Mr Anforth, that without those treatments, Mr Durham would not be able to work, whereas with them, although he continues to suffer significant levels of pain, he is able to work.
2. I noted further Dr Wilkins agreed that if one session of physiotherapy a week (which Mr Durham now pays for), maintained him, and weight loss as suggested by Dr Griffith assisted, then things may have changed. Dr Wilkins emphasised that physiotherapy was not curative, but that there were exercises and treatments Mr Durham could not do at home. As to dependence on physiotherapy, Dr Wilkins agreed that the principles espoused in Exhibit R3, 'Clinical Framework for the Delivery of Health Services' were good. Dr Wilkins also acknowledged that a pain clinic, a loss of weight and other measures which he did not explore may be of assistance. He concluded that Mr Durham's lumbar spine had not changed in 17 years, and that physiotherapy could not, and would not, cure it. It was however, a support which keeps him at work, he said.
3. I noted that Dr Griffith, when asked by the Respondent regarding what benefit Mr Durham derives from physiotherapy, replied as follows:

If physiotherapy has not resulted in consistent progressive improvement in symptoms in not longer than three months, it cannot be justified on a cost/time/benefit basis. ... self- directed exercises made known to the sufferer by the physiotherapist during the period of physiotherapy treatment designed to strengthen cores musculature and paravertebral muscles is the key to success, not passive treatment from third parties.

1. Mr Woulfe of counsel who appeared for Comcare, submitted that the evidence of Dr Bentivoglio should be preferred over that of Dr Wilkins because he is a surgeon and specialist who treats muscular conditions.
2. The Respondent submitted that the Applicant's argument that physiotherapy has a palliative effect and alleviates his condition is not made out on the available evidence. Mr Woulfe submitted that the only evidence that the physiotherapy might confer any benefit was based solely on the Applicant's subjective belief that the physiotherapy is beneficial, and that there was no objective evidence of any actual benefit resulting from physiotherapy**,** other than a limited, short- lived benefit, or that without physiotherapy Mr Durham would be unable to work.
3. Comcare submitted further, in the alternative, even if physiotherapy does provide benefit, any such benefit is minimal and transient, and is outweighed by the fact that the physiotherapy has promoted a state of dependence and has inhibited the Applicant's ability to self-manage his injury. (Popovic and Comcare [2000] AATA 264 and Excell and Comcare [2010] AATA 104.) Comcare submitted it would be unreasonable to continue to provide physiotherapy treatment to the Applicant in such circumstances.
4. Comcare submitted that this was consistent with previous decisions of the Tribunal, noting that in Re Popovic and Comcare at [28] 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.

1. The Respondent also submitted that the significant cost of the physiotherapy outweighs any minor benefit it might provide (Comcare v Rope [2004] FCA 540; (2004) 135 FCR 443 and Comcare v Holt [2007] FCA 405; (2007) 94 ALD 576). The Respondent submitted further, that the appropriate conclusion on the basis of the additional evidence provided by Dr Griffith is that the decision under review incorrectly awarded compensation to the Applicant. The Respondent's view was that the medical evidence strongly supports a conclusion that it is not reasonable for Mr Durham to obtain ongoing physiotherapy, and that the correct or preferable conclusion is that the decision under review be affirmed.
2. 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.
3. The foreword to the document states:

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.

1. Empowering the injured person to self manage is an important consideration. The document states as follows:

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.

1. I am mindful of Mr Durham's evidence regarding the role of the physiotherapy he receives, and the benefit to him, which, on each occasion, is of short duration. I say that in reliance on his evidence, and that of Mr Backen, and Mr Papagoras. Mr Papagoras opined that the current treatment Mr Durham was receiving was primarily passive, and twice weekly over a long period, despite which, Mr Durham was still symptomatic, and not improving. The MRI scan reports indicate that his condition has not changed over the last 17 years.
2. I have noted that notwithstanding Mr Durham's evidence, and Mr Anforth's submissions that the twice weekly regime of physiotherapy kept Mr Durham at work full-time, since Comcare no longer pays for that, Mr Durham attends physiotherapy once a week or less (due to work commitments). The evidence is that he is still working in his consultancy.
3. I note that Dr Wilkins agreed with Dr Bentivoglio that physiotherapy is usually only of significant benefit in the case of acute injuries, although Dr Wilkins was ultimately in favour of continuing the physiotherapy as the conservative and best way of managing Mr Durham's pain. Dr Griffith's view, as expressed above, was that if physiotherapy had not resulted in consistent progressive improvement in symptoms in not longer than three months, it could be justified on a cost/time/benefit basis. He favoured self-directed exercises designed to strengthen cores musculature and paravertebral muscles as being the key to success, not passive treatment from third parties.
4. 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.

1. The Tribunal affirms the decision under review.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.

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