1. It was common ground before the Tribunal that Ms Topping suffers from a psychiatric disorder to which her employment has contributed to a significant degree. This constitutes an injury under s 14. For the purposes of determining Comcare's liability under the Act for her massage and osteopathy costs in relation to this injury, it falls to the Tribunal to decide:
   • (a) whether, under s 16, massage and osteopathy are medical treatment obtained in relation to her injury; and
   • (b) whether, under s 16, massage and osteopathy are reasonable treatments obtained in relation to her injury.

1. In her report dated 27 January 2012, Dr Fedoroff, Ms Topping's GP, confirmed a diagnosis of severe PTSD and noted that she had been receiving the following assistive treatment:

Massage has been very helpful for the severe neck and back pain - caused by the extreme stress condition.

Chiropractor was also very helpful to relieve her neck and back...

As you know severe psychological conditions i.e. depression and anxiety express themselves as physical pain - this is a documented fact.

1. Ms Topping's treating practitioners, Dr Fedoroff and Ms Bruce, confirmed in separate reports in 2012 that she was unfit for work and that that situation was likely to continue.
2. Dr Klug, a consultant psychiatrist, stated in a report of 2 May 2012 that in his opinion Ms Topping was suffering from adjustment disorder with anxiety, but was likely to make a full recovery and be able to commence a graduated return to work.
3. Following her move to Queensland, Ms Topping consulted a psychiatrist, Dr Stanganelli. This doctor provided a report to her GP which confirmed that Ms Topping felt 'extremely anxious all the day' and suffered from panic attacks. Dr Stanganelli noted a history of three years of chronic adjustment disorders with anxiety features and PTSD, and confirmed the diagnosis of severe generalised anxiety disorder.
4. Ms Topping's treating GP in Queensland, Dr Nixon, in a report dated 18 June 2013, confirmed that she continued to suffer from PTSD and that she was being treated with a mental health care plan for cognitive behavioural therapy together with muscular massage or therapeutic massage to assist her to relax and sleep. Dr Nixon recommended psychological assistance once a week, massage twice a week and chiropractic treatment as required.
5. In a report dated 4 October 2013, Prof Robertson described Ms Topping's condition as follows:

Mrs Topping has an exceptionally poor prognosis. She presents with a complex mix of anxiety, existential despair and ongoing situational crisis which portends poorly for any form of recovery.

1. He also suggested that she had some capacity for a return to work. Though he commented in this report that he believed Ms Topping was in receipt of appropriate care, when answering the question from Comcare as to the appropriateness of massage or chiropractic treatment for her he responded, in a supplementary report dated 9 January 2014:

In essence, remedial massage and chiropractic treatment are not recognized [sic] psychiatric interventions.

1. In a report dated 24 June 2014, a further consultant psychiatrist, Dr Kenny, accepted that the applicant suffered from PTSD. He felt that the condition will continue indefinitely and that the employment-related aspects were major components contributing to her disability. In his opinion, she was not fit to undertake a return to work programme.
2. In a further report to Comcare dated 2 October 2014, Prof Robertson expressed this opinion:

I do not believe that massage or chiropractic treatment is recognized [sic] psychiatric treatment for psychological injuries. I have no view as to whether they are contra-indicated.

1. In a further report of Dr Nixon dated 10 July 2014, she noted that Ms Topping had been receiving counselling and relaxation therapy in the form of massage and chiropractic treatment for neuromuscular tension associated with her condition for some time. She added:

I also recommend she continue massage and chiropractic treatment for the next six months at least as she reports great benefits from both in relieving muscle tension and contributing to relaxation and mental well being.

1. Ms Topping's treating psychologist since 2009, Ms Bruce, stated in a report dated 11 August 2014:

I understand that Ms Topping's G.P. Dr. Anne Nixon, and psychiatrist Dr. Lean have recommended Ms. Topping continue chiropractic and massage therapy in order to relieve pain caused by muscle tension triggered by the anxiety that is part of her accepted condition of Post Traumatic Stress Disorder.

I support the recommendation made by these medical specialists to continue all therapies they recommend.

These therapies help decrease the muscle tension that Ms Topping experiences, and help decrease her pain.

1. Dr Lean also confirmed his support for Ms Topping receiving ongoing massage therapy in a report dated 26 August 2014, noting:

However she (the applicant) continues to be very disabled by her ongoing PTSD symptoms with severe tension both emotionally and physically...

I strongly endorse and support Ms Topping continuing with her massage therapy in the setting of her PTSD as she derives symptom relief and therefore much improved quality of life...

As a result of the severe tension induced by her PTSD Ms Topping has developed a regional pain syndrome affecting her neck and back in particular, but also her limbs. This is common sequelae to the psychologically traumatic experiences and is well documented in the medical literature.

1. Ms Topping has been receiving massage therapy and chiropractic/osteopathic treatment since 2009 to treat, she asserts, symptoms in her neck, spine, arms, shoulders, wrists and hands. The tendered notes of Kelly Howland Massage Clinic record tightness in the shoulders and neck, back, bottom and forearms being alleviated by massage. Ms Topping has received a total of some 145 episodes of massage (the cost of most of which were met by Comcare, totalling $7,859.56) and 6 episodes of chiropractic (at a total cost to Comcare of $359.00).
2. In her statement to the Tribunal, Ms Topping notes:

These parts of my body get really tight, my hands go numb, swell and and [sic] become extremely painful. This makes it difficult for me to drive or do other tasks that require manual dexterity and I often drop things and burn myself...

The physical tenseness I suffer as a result of my psychiatric condition causes my jaw and facial muscles to tense. I suffer from teeth grinding and probably bruxism at night...

The daily anxiety that I suffer as a result of my accepted condition is a real problem for me. I am reliant on the medication my doctors have prescribed for me and on the physical therapy that helps relax me when I get tense as a result of my condition.

1. The claim for massage and osteopathy arise under section 16(1) of the Act:

(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.

1. Medical treatment is defined in section 4 of the Act as:

...

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

...

(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be.

1. Section 4 also says therapeutic treatment:

... includes an examination, test or analysis done for the purposes of diagnosing, or treatment given for the purposes of alleviating, an injury.

1. The injury in this case is Ms Topping's accepted condition of post traumatic stress disorder.

Are massage and osteopathy medical treatments in relation to the injury?

1. Clearly the definition in s 4 of medical treatment contemplates treatment by an osteopath, masseur or chiropractor as qualifying under s 16(1), if other conditions in the Act are met, including that the treatment is given by, or under the direction of, an appropriately qualified person. The effect of the provisions above is that the treatment must be (in the present context)
   • (a) "therapeutic", i.e. for the purposes of alleviating the applicant's injury, and
   • (b) obtained at the direction of a legally qualified medical practitioner or be provided by, or under the supervision of, a masseur or osteopath registered under state or territory law.
2. The massage and chiropractic/osteopathy treatment provided to Ms Topping since 2009 was initially provided at the recommendation of her treating GP, Dr Fedoroff, and its continuance supported by her treating practitioners since then, including psychologist Ms Bruce and psychiatrist Dr Lean. It was not disputed before the Tribunal that those medical practitioners who directed the use of massage and chiropractic/osteopathy for Ms Topping were legally qualified, nor that the osteopaths or chiropractors providing her with treatment were registered under the relevant State or Territory laws. The Tribunal is not aware of any regime for the registration of masseurs in either Queensland or the ACT.
3. The Respondent asserted before the Tribunal that the view of Prof Robertson should be preferred, to the effect that massage and chiropractic/osteopathy are not valid forms of medical treatment in the management of psychological injuries. On the basis of that preferred view, the Respondent maintained that massage and chiropractic/osteopathy could not be treatment in relation to the Applicant's injury, in that these treatments had no demonstrated capacity to cure or relieve Ms Topping's psychological injuries.
4. An impressive body of medical literature was cited before the Tribunal which we think demonstrates very amply that massage and chiropractic/osteopathy does not constitute - in the view of mainstream psychology and psychiatry - effective treatment for curing or relieving psychological injuries. Prof Robertson, in a report dated 13 December 2014, provided three reports which we feel represent the predominant or mainstream view of the international psychological/psychiatric community:

1. National Institute for Health and Care Excellence, Clinical Guideline 26, Post-traumatic stress disorder (2005). 2. Cochrane Review, Psychological therapies for chronic post-traumatic stress disorder (PTSD) in adults (2013).

1. The Royal Australian and New Zealand College of Psychiatrists, Australian guidelines for the treatment of adults with acute stress disorder and post-traumatic stress disorder (2007).
2. However, we accept the Applicant's assertion that treatment may be therapeutic notwithstanding that it merely addresses or reduces symptomatology without actually being curative of the primary condition. In Luttrell and MRCC [2012] AATA 692 an applicant with a compensable psychiatric condition was prescribed a drug (Lyrica) for a non-accepted lateral cutaneous nerve syndrome which caused pain in his thigh, making sleep difficult and thus worsening his psychiatric symptoms. In that case the Tribunal found that there was a relational connection between his psychiatric condition and the treatment with Lyrica, because the Lyrica produced a consequent indirect reduction in the psychiatric symptoms.
3. The Tribunal was told that the purpose of Ms Topping's massage and chiropractic/osteopathy was and is to reduce muscle tension and pain, and enable her to better focus on other aspects of her treatment. The relational connection between the reduction of pain from muscle tightness and the improvement in response to other treatment of her psychological condition would be sufficient to demonstrate that the treatment is in relation to that condition. Certainly Ms Topping is strongly of the view that the treatment assists her to manage her psychological condition.
4. Dr Nixon's progress notes dated 6 March 2013 refer to Ms Topping's complaint of numbness and painful hands at night and note that an ultrasound had been requested. There is no report of that test, if it happened, being filed in evidence. However the report of a CT scan conducted on 12 June 2014 was tendered. There is evidence here of degenerative osteoarthritic changes, of varying severity, at the vertebral junctions all the way down this part of the spine. These degenerative changes possibly offer an alternative explanation for the symptoms in her arms and neck.
5. We take the view that massage and chiropractic/osteopathy are medical treatments obtained by Ms Topping in relation to her compensable injury, notwithstanding the lack of evidence that these treatments are easing or diminishing the underlying injury. In similar fashion, dialysis would be regarded as treatment in relation to kidney disease, relieving only the consequences of the disease but without effect on the course of the underlying condition. However, the question of the extent to which these treatments are having such an effect on the course of the underlying injury does go to the question of whether massage and chiropractic/osteopathy are reasonable treatments in relation to the injury, in the terms of s 16 of the Act. We now turn to that question.

Are massage and osteopathy reasonable treatments in relation to the injury?

1. Section 16(1) requires consideration of whether the treatment for which payment is sought was reasonable for the employee to obtain in the circumstances. The test is not whether the treatment was reasonable in absolute or empirical terms, but whether it was reasonable in the circumstances facing the employee. Thus what may be reasonable treatment in the circumstances of a 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) 23 ALD 321 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.

1. Certainly the terms of s 16 import a notion of cost/benefit analysis in assessing how reasonable particular treatment might be to the circumstances of the employee concerned. This involves weighing the cost of obtaining the treatment against the benefits conferred. In Comcare Australia v Rope [2004] FCA 540; (2004) 135 FCR 443 the applicant claimed the cost of travel from Canberra to Townsville to obtain a unique form of psychological treatment, one not available where she lived. Stone J commented:

I accept, however, that 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 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 (at [17]).

The Tribunal found that the cost of such travel was reasonable vis-a-vis the benefit it conferred on the applicant, and the Federal Court did not disturb that finding of fact.

1. Naturally, this equation of fact vs benefit entails consideration of how much good is actually delivered to an applicant, and it is obvious that there must be an element of objectivity in this to weigh against the cost of that good. This will be a particularly critical analysis where, as is conceded in this case, the treatment obtained and being obtained by Ms Topping has not, and probably will not, ameliorate the course of her underlying psychological condition.
2. This test was commented upon by Madgwick J in Bashar v Comcare [2002] FCA 837:

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 (at [11]).

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 (at [12]).

1. A number of previous decisions, both of the Tribunal and the Federal Court, were drawn to our attention. In Bayani and Australian Postal Corporation [2015] AATA 342 the Tribunal considered the principles found in the Clinical Framework for the Delivery of Health Services (the Framework). It referred to the adoption by most Australian jurisdictions' workers' compensation and motor accident compensation agencies of the Framework as principles to guide health care professionals in the treatment of injury. The five principles enunciated by the Framework are, as stated at [22]:

Measure and demonstrate the effectiveness of treatment

Adopt a biopsychosocial approach

Empower the injured person to manage the injury

Implement goals focused on optimising function, participation and return to work

Base treatment on the best available research evidence

In relation to Principal One of the Framework, Senior Member Handley observed, in relation to the applicant in that case (at [48]):

I am satisfied that had this principle been observed, it would have been obvious that the physiotherapy treatment was not providing a measurable benefit_, the applicant's_ health status had not changed, and functional goals_, if ever established, were not being achieved._ (Emphasis in original)

1. On this basis, inter alia, he concluded (at [55]):

I think because there has been no real benefit to the applicant by the prolonged physiotherapy treatment that she has undertaken, there is considerable benefit in her taking responsibility for self-management of her symptoms, consistent with the Framework. I fear that the applicant has become dependent on physiotherapists who have provided her with symptomatic relief only. For her to undertake self-management will require a refocus of responsibility and a willingness to be instructed and subsequently practice and implement appropriate strategies as determined by a competent physiotherapist.

Counsel for the Respondent in the present matter asserted that treatment that conformed to the Framework principles was more likely to be considered reasonable in the terms of s 16.

1. Similarly, in Popovic and Comcare [2000] AATA 264; (2000) 64 ALD 171 the applicant claimed for physiotherapy which provided short-term relief of his symptoms, including affording better sleep making him less depressed and less irritable on the succeeding day. The Tribunal found (at [28]):

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: Comcare v Watson (1997) 73 FCR 273 at 276 ; [1997] FCA 149; 46 ALD 481 at 484 ; [1997] FCA 149; 154 ALR 173 at 176 per Finn J. However, in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object. Taking into account the whole of the evidence before us, we consider that in the applicant's case it was not in his best interest for passive physiotherapy modalities to have continued beyond 16 September 1997: Re Jorgenson and Commonwealth (1990) 23 ALD 321.

1. The Tribunal went on to say (at [30]) that the applicant's case is one in which, while temporary relief can be reasonable treatment, it has become unreasonable...
2. In Chowdhary and Comcare [1998] AATA 448 the Tribunal commented, with respect to a claim for physiotherapy treatment under s 16 (at [53]):

In particular, there is no evidence of any plan to have the 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.

1. In Alamos and Comcare [2014] AATA 629 the Tribunal rejected a claim for physiotherapy on the basis that short-term alleviation of the applicant's symptoms, is not medically indicated and will not provide long-term improvement in [the applicant's] condition (at [39]). On a similar basis, the Tribunal in Durham and Comcare [2014] AATA 753 rejected a claim for physiotherapy, even though evidence had been led that this treatment, while ineffective in overcoming the applicant's pain, did allow him to continue working.
2. In Comcare v Holt [2007] FCA 405 Mansfield J concluded that a cost/benefit analysis, of the kind recommended in Rope, ought to be undertaken. His Honour decided that there may be circumstances where therapeutic treatment will be unreasonable if alternative treatment is available for potentially similar benefit at a lower cost, and he decided that the extent to which such treatment has been undertaken in the past and the degree of its success may also be relevant (at [26]). His Honour added, however, that:

There may be cases... where 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...(at [26]).

1. The trend of this line of previous decisions is clear (although it must be noted that the findings in Rope appear to pull in a somewhat different direction). Applying that trend, the Tribunal notes that there is no evidence that massage therapy or chiropractic/osteopathy have had or will have any curative effect on Ms Topping's psychological injury. Although it was suggested in evidence that the treatments may be linked with some small improvement in the outlook for Ms Topping, the evidence overall suggests that her condition is static after six years of this treatment. Clearly Ms Topping believes that the therapies are beneficial to her, and cites their role in sustaining her quality of life. But the evidence also suggests that the therapies have become a ritual, fostering a dependence on her part to them which could be inhibiting her ability to self manage her condition and foster future self-reliance.
2. The position appears to be that Ms Topping is in something of a rut, clinically speaking. According to the Applicant's submissions:

The true position at the present time is that mainstream psychiatric treatment is not going to effect a cure of the Applicant's condition, given that six years has passed since the original diagnosis. The question is what treatment is reasonable for the Applicant to obtain to maintain as much of her functioning as possible?

The nature of [compensable] medical treatment is that it includes treatment which is only alleviating with no long term curative effect involved... If she gets better, it will be good; but no-one's expecting that to happen... If she gets improvement, the improvement will come from the fact that the psychiatric treatment is starting to bite, but in order to get the psychiatric treatment to bite she's got to be in a frame of mind where she can deal with it. For a start, she's got to be able to go there and get the treatment, she's got to be in a frame of mind where she's concentrating on what Linda Bruce or Dr Lean are doing with her and that requires her to be able to function at a level where she can do that.

Counsel for the Respondent described Ms Topping's interaction with her therapies thus:

...she is in a ritual; she is in a habit that has been formed over time, and fostered by the provision of ongoing passive modalities.

1. Counsel for Ms Topping submitted several articles outlining the role of massage and other treatments - falling under the banner of Complementary and Alternative Medicine (CAM) strategies - in the management of stress disorders (Exhibit A10).[1] These papers, relating mainly to approaches being pursued in the United States and often in the context of veterans with PTSD, were led in support of counsel's contention that The literature is increasingly showing that CAM therapies are being utilised to provide supportive treatment, in conjunction with mainstream medicine.
2. It is unnecessary here to explore the contemporary medical view of the role of such therapies, beyond observing that this is a matter which is yet to be settled. However, we do note that a common feature of these CAM programmes is active clinical intervention and intensive participation on the part of those being treated. As such we note a contrast between the modalities espoused in this literature and the somewhat passive modality exhibited in receiving massage/osteopathy, taking medication and accessing counselling from a psychologist by telephone at roughly monthly intervals.
3. Ms Topping's treatment regime does not seem to sit well with either the principles found in the Clinical Framework for the Delivery of Health Services or those underpinning the tendered literature on CAM strategies. As with the applicants in Chowdhary, Popovic, Alamos and Durham, the benefits conferred on Ms Topping by the treatments in question seem superficial and ephemeral, though they lift her confidence to face the future - "improves her mood", as her counsel put it. There was some evidence (from Ms Bruce) that the treatments were a necessary foundation for other psychiatric and psychological therapy to be effective, but the better view is that the treatments simply added to her quality of life, with temporary respite from pain.
4. Counsel for the Respondent summarised the decisions cited above as establishing this test: treatment will not be reasonable...unless it is part of a plan for the permanent improvement in the health of an employee. Without adopting a test as prescriptive as this, 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.
5. 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.
6. We find that the massage and osteopathy treatment, the costs of which are claimed by Ms Topping, though it qualifies under s 16 of the Act as medical treatment obtained in relation to her injury, is not reasonable treatment obtained in relation to that injury. Accordingly, we affirm the decision of Comcare made on 15 April 2014.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries and Dr Bernard Hughson, Member

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

[1] For example, the Applicant tendered a US Department of Veterans Affairs Health Services Research & Development Service report of August 2011 (Efficacy of Complementary and Alternative Medicine Therapies for Posttraumatic Stress Disorder). In this report a question was posed 'In adults with PTSD, are manipulative and body-based complementary and alternative medicine therapies (e.g. spinal manipulation, massage) more efficacious than control for PTSD symptoms and health-related quality of life?' In response, the authors identified only one randomized controlled trial that they described as of poor quality, and no unpublished or ongoing studies addressing the question. Their final conclusion was 'We found no relevant [systematic reviews] of good or fair quality'.

The Applicant's exhibits mostly concerned US veterans. Two papers related to men whose PTSD resulted from combat injury and exposure. This cohort does not resemble the Applicant. A third comprised 14 women using prescription analgesics. This group is closer to the Applicant, with the exception that all but one had a history of extensive childhood abuse. In all three papers a number of modalities are used, including those that have already been shown to be effective. There is no evidence in any of the papers that demonstrate efficacy for massage therapy or osteopathy.

In fairness to the Applicant, these studies were submitted to demonstrate in part that "the world is changing" in that CAM therapies were now achieving more attention by government departments.