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WORKERS' COMPENSATION - Acceptance of liability under the Safety, Rehabilitation and Compensation Act 1988 for irritable bowel syndrome, chronic adjustment disorder with depressed mood, erectile dysfunction and posttraumatic stress disorder - Medication (Lyrica) administered as pain reduction treatment for (non-accepted) lateral cutaneous nerve syndrome - Consequential improvement in symptoms of accepted psychiatric conditions - Treatment

"in relation to" accepted conditions - Compensation payable for administering Lyrica - Decision set aside

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

Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 187 ALR 487

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

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

Manns and Comcare [2012] AATA 462

O'Grady v Northern Queensland Company Limited [1990] HCA 16; (1990) 169 CLR 356

PMT Partners Pty Limited (in Liquidation) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301

Pratt and Comcare [2004] AATA 1281

Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321

Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513

1. On 5 October 2011, the Military Rehabilitation and Compensation Commission ("the MRCC") made a reviewable decision that it was not liable, under s 16 of the

Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"), to compensate Trevor Luttrell for the cost of the medication Lyrica. The MRCC has accepted liability under the Act for irritable bowel syndrome, chronic adjustment disorder with

depressed mood, erectile dysfunction and posttraumatic stress disorder based on Mr Luttrell's service in the Australian Army Reserve from 1966 until 1997. Mr Luttrell also suffers from a range of other conditions, some of which have been rejected by the MRCC as being related to his Army service. These include arthritis, sleep disorder, obesity, hyperlipidaemia and hypercholesterolaemia. 2. For the MRCC, Mr Charles Clark submitted that the administering of Lyrica was not medical treatment obtained by Mr Luttrell "in relation to" an injury accepted as compensable under the Act. He conceded that the reasonableness or otherwise of the treatment was not in issue. Mr Luttrell submitted that, while Lyrica was prescribed for a non-accepted disability, it had the effect of reducing his pain levels with a consequential beneficial effect on his recognised psychiatric conditions and was, therefore, "in relation to" those recognised conditions.

1. Several reports were in evidence from Mr Luttrell's treating psychiatrist, Dr Geoffrey Rees. He identified posttraumatic stress disorder and another condition which he variously described as depressed mood as part of his adjustment disorder,

and major depressive disorder. As noted above, the compensable condition accepted by the respondent under the Act is chronic adjustment disorder with depressed mood. In his report of 20 July 2010, Dr Rees noted that Mr Luttrell described a depressed mood and symptoms of depressive disorder and concluded that this "shades" into

"Chronic Adjustment Disorder with Depressed Mood". For that reason, I am satisfied that Dr Rees, who was not called to clarify his terminology, has used the term depressive disorder to indicate the depressive mood component of the compensable condition. 2. On 21 February 2011, Dr Rees noted that Mr Luttrell had developed lateral cutaneous nerve syndrome which caused pain in his left upper and lateral thigh. He described this pain as worsening his depression and making sleep difficult. Dr Rees referred to a trial of Lyrica which led to a "90% reduction in his pain and a commensurate positive effect on his mood". His opinion was that the provision of this medication was an adjunct in treating Mr Luttrell's accepted psychiatric conditions. On 26 May 2012, Dr Rees agreed that the lateral cutaneous nerve syndrome was not caused by Mr Luttrell's depression or his posttraumatic stress disorder. However, his opinion was that the pain and dysfunction from the cutaneous nerve syndrome "was having a significant effect" on Mr Luttrell's mood. Dr Rees maintained his opinion about the benefits of Lyrica and referred to Mr Luttrell's pain levels increasing and his mood levels reducing when the use of Lyrica ceased. 3. In September 2011, Dr Rees noted that Mr Luttrell was experiencing "electric shocks" down both hands and feet and referred him to neurologist, Dr Chris Staples,

who completed a report on 23 March 2012. Dr Staples considered that Mr Luttrell showed early signs of "sensory neuropathy affecting the distal feet". He reported

two years of worsening numbness, electric shocks, paraesthesia, burning and several years of restless leg syndrome. Dr Staples described a complicated background history including obesity, obstructive sleep apnoea, impaired glucose tolerance, hypercholesterolemia, coronary artery disease, anxiety, depression, posttraumatic stress disorder, melanomas, bladder outlet obstruction, a fatty liver, renal calculus,

irritable bowel syndrome, diverticular disease, colonic polyps, androgen deficiency, IgA deficiency, hyperparathyroidism and mild bilateral sensorineural deafness. He also noted a family history of diabetes. Dr Staples' opinion was that Mr Luttrell had early sensory neuropathy. 4. Orthopaedic surgeon, Dr Patrick Weinrauch, completed a report on 17 May 2012. He treated Mr Luttrell for lateral cutaneous nerve of the thigh compression. Dr Weinrauch wrote that use of Lyrica can commonly be effective with management of neurologic pain and that it can also be effective in combination with surgery. Mr Luttrell underwent surgery in December 2010 and Dr Weinrauch noted an improved result after that procedure. Dr Weinrauch also noted on-going problems with Mr Luttrell's thoracic and cervical spine. He wrote that he would support the use of Lyrica for the management of any residual discomfort associated with Mr Luttrell's lateral cutaneous nerve of the thigh palsy. 5. Mr Luttrell's general practitioner, Dr Christine McAuliffe, completed a report on 31 May 2012. She wrote that Mr Luttrell has neuralgic pain in his lower back, left leg and other limbs. She noted Dr Staples' diagnosis of early sensory neuropathy. Her opinion was that Mr Luttrell required Lyrica to control his neuralgic pain which directly aggravates his depression and posttraumatic stress disorder symptoms and also reduces his ability to exercise, thereby aggravating his glucose impairment and hypercholesterolemia.

1. It is not disputed that "medical treatment" under the Act extends to administering medication such as Lyrica.[1] Compensation for medical treatment is provided for in s 16(1) of the Act, which reads:

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.[2]

1. In Re Pratt and Comcare[3] (Pratt), the applicant suffered from atherosclerotic coronary artery disease. In September 2001, he experienced a myocardial infarction which was accepted as a compensable injury. In November 2001, he was admitted to hospital with a recurrence of chest pain and an angiogram revealed one artery to be totally blocked and others to be narrowed to varying degrees. Specialist opinion was that a double stenting procedure was the most appropriate treatment for the blocked artery. This operation was performed in February 2002 and Comcare submitted that the procedure comprised treatment for the underlying heart disease rather than the compensable injury of myocardial infarction. The Tribunal rejected that submission, stating, at [25]-[27]:

25. The phrase "in relation to" in section 16 needs to be looked at in the context of being part of beneficial legislation and within a section which provides generally for the payment of medical expenses under the compensation scheme set up by the legislation. In accordance with the decisions referred to above we should interpret the phrase widely unless the context requires it to be read down. Comcare contends that it should be interpreted as meaning that the medical treatment for which compensation is payable should be restricted to treatment 'of' the injury. On this argument the stenting procedure was treatment of the underlying condition and not treatment of the infarct. We do not accept this argument. Had Parliament intended to restrict compensation for treatment in this way it could simply have said so by using the far more restrictive preposition "of" rather than "obtained in relation to".

26. We find that the cost of the whole of the stenting procedure is compensable. Dr Coles and Professor O'Rourke agreed that stenting would now be used to treat a myocardial infarct provided that the procedure could be undertaken within a short period of the injury occurring. In those circumstances clearly the procedure in part would be treatment of the infarct itself and part treatment of the underlying condition to reduce the risk of recurrences of an infarct. For the reasons stated above, the section should be interpreted broadly so as to include Mr Pratt s treatment in this case. Dr Coles stated that the stenting was to prevent a recurrence of the injury and that it became necessary because of the injury Mr Pratt had already suffered. This is sufficient connection for the purposes of section 16 of the Act.

27. Alternatively, on the basis of Dr Coles evidence we have found that part of the stenting was carried out at the site of the occlusion which caused the infarct and at which site it was reasonable to expect that the disruption of the plaque was worse after the acute event. We are of the view that such treatment is treatment "in relation to" the accepted injury which occurred on 14 September 2001.

1. In Manns and Comcare[4] (Manns), following work-related incidents, Ms Manns' claims were accepted in August and November 2004, respectively, for "sprain of patella

knee (right)" (at [6]) and "bruise - knee (right)" (at [8]). Her pain persisted and, in years following, a series of Comcare-approved procedures was carried out on her knee, including iontophoresis over the patella tendon, Celestone injections, arthroscopy,

lateral release surgery, tibial tubercle shift surgery and surgery to tighten the biomechanical structures of the knee, including iliotibial band tenodesis.

In September 2010, she underwent a Comcare-approved "revision right patellofemoral reconstruction" (at [15]). In October 2010, Comcare revoked that approval and

Ms Manns sought review of that reviewable decision by the Tribunal. While Comcare conceded that the surgery constituted "medical treatment", it argued that it was not

"in relation to" to Ms Manns' accepted right knee injuries (at [17]). It also argued that the procedure was not reasonable when "the costs and benefits of the treatment options" were considered and where "the weight of the contemporaneous and subsequent evidence" was that further surgery was contra-indicated (at [18]). The Tribunal in Ms Manns' case determined that, in accordance with the requirements of s 16 of the Act, the procedure constituted medical treatment in relation to Ms Manns' accepted knee conditions and that it was reasonable in the circumstances. As to the former, the Tribunal stated, at [22]:

The liability to pay compensation for medical treatment under s 16 is not confined to treatment 'of' or 'for' an injury, but extends to treatment 'in relation to' an injury. The phrase 'in relation to' has a broad meaning that is not confined to a direct or proximate relationship of cause and effect; it simply signifies that there is some relational connection between two matters[5]. Presently, the relational connection is between the medical treatment Ms Manns obtained and the right knee injuries for which Comcare accepted liability. The closeness of the relational connection must be ascertained "by reference to the nature and purpose of the provision in question and the context in which it appears"[6]. These are matters of degree[7], to be determined on the evidence applying the reasonable satisfaction civil standard without resort to indefinite evidence or indirect inference[8].

1. While the Tribunal did not accept that Ms Manns suffered from chondromalacia patellae in September 2010, it was satisfied that the various procedures which she had undergone since 2004 produced certain biomechanical changes in the knee, that these procedures were related to her accepted knee conditions, that the 2010 procedure was intended to restore her knee to its original conformation and that, accordingly, the procedure was medical treatment in relation to her original injuries. It concluded, at [37]:

Whether the relationship between the surgical operation Dr Caldwell performed and Ms Manns' accepted injuries is direct or indirect, we are reasonably satisfied that it is sufficiently close to establish that the treatment Ms Manns obtained from Dr Caldwell was 'in relation to' her accepted injuries for the purposes of s 16 of the Act. We so find.

1. As to the reasonableness of the procedure, the Tribunal stated, at [40]:

When addressing this issue, it is necessary to consider the circumstances at the time, and in so doing to have regard to all the relevant materials pertaining to those circumstances. Furthermore, the test of reasonableness involves objectivity[9] and requires us to consider the costs and benefits of treatment options, including no treatment at all[10]. It is important to note that the consideration of reasonableness is squarely directed to Ms Manns obtaining the treatment in the circumstances; it is not directed to the reasonableness of the treatment, although, of course, that is a factor that may bear upon the reasonableness of Ms Manns obtaining it.

The Tribunal considered the evidence of the various alternative treatments available to Ms Manns and concluded, at [49], after weighting the costs, risks and benefits thereof, that the surgical treatment in 2010 was reasonable in the circumstances. As noted above, the reasonableness or otherwise of the Lyrica treatment is not in issue in Mr Luttrell's case.

1. I accept the proposition that liability to pay compensation for medical treatment "in relation to" an injury under s 16 of the Act extends beyond treatment "of" or "for" an injury. However, I also accept the observation in Manns that, for treatment to fall within the provision, there must be some relational connection between the treatment and a condition for which liability has been accepted.[11] As I read Manns, the relational connection was in the various procedures carried out on the knee and the treatment for returning the knee to its original condition. In Pratt, the treatment was in relation to an underlying atherosclerosis which was responsible for the accepted condition of myocardial infarction.
2. In Mr Luttrell's case, a relational connection between his psychiatric conditions and the treatment with Lyrica is found in the evidence of Dr Rees. He reported that Mr Luttrell developed lateral cutaneous nerve syndrome which caused pain in his thigh. He noted that this pain was making sleep difficult and worsening his accepted psychiatric condition. Clearly, there is no direct relationship between the Lyrica and the psychiatric status of Mr Luttrell and benefit from the medication may, initially, have been a coincidental consequence. However, with the substantial reduction in psychiatric symptoms from the ongoing prescription of Lyrica, I am satisfied that the administering of Lyrica is now treatment in relation to those accepted conditions.

In particular, it is significant that the medication has been prescribed by a psychiatrist in relation to Mr Luttrell's psychiatric conditions.

1. The Tribunal sets aside the decision under review and substitutes its decision that the administering of Lyrica is medical treatment in relation to the applicant's accepted injuries for which Comcare is liable under s 16 of the Act.

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member .

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[1] See s 4(1), of the Act, definition (h) for "medical treatment", which includes "nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise".

[2] No guidance on the ambit of that provision is revealed in the relevant Explanatory Memorandum or Parliamentary Debates: see Commonwealth Employees' Rehabilitation and Compensation Bill 1988 (2nd Reading Speech, 27 April 1988).

[3] [2004] AATA 1281.

[4] [2012] AATA 462.

[5] Citing Smith v Federal Commissioner of Taxation [1987] HCA 48; (1987) 164 CLR 513 at 533_; Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549_; (2001) 114 FCR 472 at 487.

[6] Citing PMT Partners Pty Limited (in Liquidation) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 313.

[7] Citing O'Grady v Northern Queensland Company Limited [1990] HCA 16; (1990) 169 CLR 356 at [10].

[8] Citing Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362-363_._

[9] Citing Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321 at 325.

[10] Citing Comcare v Rope [2004] FCA 540; (2004) 135 FCR 443 at 448.

[11] See Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 187 ALR 487 at 501.