Safety Rehabilitation and Compensation Act 1988, sections 4 and 16

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

Jorgensen and Commonwealth of Australia (1990) 23 ALD 321

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

Catterick v Comcare [2013] AATA 21

Popovic and Comcare [2000] AATA 264; (2000) 64 ALD 171

Durham and Comcare [2014] AATA 753

Comcare v Watson [1997] FCA 149; (1997) 46 ALD 481

Clinical Framework For the Delivery of Health Services (WorkSafe Victoria and Transport Accident Commission, June 2012)

1. Mrs Bayani, the applicant in this review was employed by the respondent from 1980, but for a period of about two years, until 2012 when she accepted a voluntary redundancy package. She held a number of positions, initially as a mail officer, a van driver, supervisor and eventually, undertaking administrative work.
2. The applicant suffered neck and left shoulder pain as a consequence of a number of events that occurred during her employment. When claims for compensation were made, the respondent, on most occasions, accepted liability pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the Act), especially, and as will become obvious later, relevantly, pursuant to s 16 of the Act.
3. This review is a challenge to a reviewable decision made on 12 June 2013 by an officer of the respondent. The primary determination denied the costs of ongoing physiotherapy treatment and a 12-month gymnasium program. The review officer affirmed the decision concerning the gymnasium program but varied the determination to accept liability to meet the costs of attending a physiotherapist, restricted to three sessions over a one-month period for the purposes of encouraging and empowering the applicant to self-manage her injuries by a home exercise program.
4. The applicant, who was unrepresented in this review, contended that she was entitled to compensation payments from the respondent to meet the costs of ongoing physiotherapy treatment and a 12-month gymnasium program which she said would strengthen her muscles, give greater mobility and reduce her pain.
5. The incidents within the employment which the applicant contended were responsible for her neck and left shoulder pain commenced in 1995. This is the fourth application she has made to this Tribunal challenging decisions of the respondent. During the hearing, the respondent's representatives lodged the T-documents from a previous application (2005/0615 - the 2005 application - Exhibit R3) which together with the T-documents lodged in this application give an historical overview. Relevantly, the reviewable decision recorded that the applicant did have an accepted claim for compensation in respect of "significant exacerbation of pre-existing neck and left shoulder region pain" sustained on 1 May 2006. The applicant was involved in a motor car accident on her way to work on that date. The respondent contended that the decision under review concerns the ongoing entitlement to the cost of physiotherapy treatment and cost of a 12-month gymnasium program in respect of the accepted claim.
6. The respondent did not contest that the applicant does suffer from neck and left shoulder pain. The incidents, which arose out of or in the course of the employment and which the applicant contended were responsible for her pain, were also not in issue. Those incidents, which are recorded below emerged from the evidence during this hearing and are described in other reports found within the T-documents of this application and the 2005 application.
7. The applicant was involved in three motor vehicle accidents on:
   • 27 September 1995 when driving to work (2005 application, T39, page 86);
   • 9 November 1995 when driving to work (report of Dr Ebringer dated 13 January 1970, T93, page 170); and
   • 1 May 2006.
8. Additionally, there were four other incidents which occurred in the course of her employment or on her way to the workplace being:
   • (a) a fall which occurred whilst walking to work on 21 April 1981 (2005 application, T7, page 18);
   • (b) driving a mail van over unmade roads in or around Lilydale during April 1981 - report and claim made 14 July 1981 (2005 application, T8, page 26);
   • (c) successfully attempting to arrest the fall of heavy wire baskets containing postal items on 18 August 1995 (2005 application, T35, page 80); and
   • (d) a report of neck and shoulder pain which the applicant associated with the posture she adopted at her workstation over four years (prior to attending her doctor on 15 December 2004) (2005 application, T46-48, pages 100-104).
9. The majority of the applicant's treatment for many years has been with Dr Ralph Vanderzeil, a general practitioner. The earliest record I can find of him treating the applicant is a Determination of the respondent to pay his fees for consultations in June 1984 (2005 application, T16, page 41). Dr Vanderzeil was then practising in Templestowe. He now practices in Eltham. His clinical records from his Eltham practice from 2001 were received as Exhibit R1. He supported the applicant in her claim to have the respondent accept liability for a 12-month gymnasium membership. In a letter to the respondent of 15 January 2013, Dr Vanderzeil recorded I consider that she would benefit from an ongoing gym membership in order to better manage her symptoms (T123, page 234).
10. The applicant has had physiotherapy treatment for many years by a number of practitioners. The T-documents in the 2005 application record a claim by Ms Bridget Shaw to fund 20 sessions of physiotherapy treatment commencing on 24 December 2004 (2005 application, T46, page 100 - a letter from the respondent approving the funding cannot be located. The applicant confirmed that she did consult Ms Shaw). Approval was given to Ms Mirkovic for 15 sessions commencing on 10 May 2006 (T14, page 39 and T19, page 47) and Ms Leaf for 10 sessions commencing on 14 September 2006 (T20, page 48 and T22, page 50) and 10 sessions commencing on 1 February 2007 (T48, page 101 and T49, page 102). The T-documents in the 2005 application also record certificates notifying physiotherapy treatment being undertaken by Mr Wigg on 1 February 1996 (2005 application, T37, page 84) and Mr Lovey on 10 December 1996 (2005 application, T43, page 95).
11. The majority of the applicant's physiotherapy treatment has been provided by Ms Jennifer Jacobsohn. The applicant first consulted Ms Jacobsohn in April 2007 and remained under her care until she retired from practice in June or July 2013. The T-documents record that Ms Jacobsohn successfully made a number of applications to the respondent for approval of physiotherapy treatment plans in blocks of 10 and 13 sessions between April 2007 and October 2012 (T62, page 115; T78, page 131; T108, page 218; T111, page 222 and T119, page 230). Ms Jacobsohn also supported the applicant in her current claim by a letter to the respondent dated 16 January 2013 (T124, page 235) requesting funding for a 12-month gymnasium membership to assist with strengthening her muscles and assist with her recovery; and a letter dated 20 May 2013 (T129, page 243) recording ongoing [physiotherapy] treatment is beneficial for Ms Bayani to assist with her work-related injury.
12. The applicant has subsequently been attending Ms Goldsworthy for physiotherapy treatment from 22 August 2013. In a report of 20 February 2015 (Exhibit A2), Ms Goldsworthy recorded that she has consulted with the applicant on an as need basis and recently the treatment has been fortnightly.

1. Dr Vanderzeil supplied a report dated 22 December 2014 (Exhibit A4) recording that the applicant suffered left-sided neck pain, occipital headache and left shoulder injury. He recorded that the applicant is aware of self-management in the form of exercises, attention to posture, etc, the headache and neck pain prevents her from undertaking many daily activities and physiotherapy treatment had relieved her symptoms for 2-4 weeks at a time. He reported the applicant is greatly benefited by physiotherapy treatment which is required every 3-4 weeks.
2. In evidence, Dr Vanderzeil said physiotherapy treatment would give the applicant symptomatic relief only. He referred the applicant to Mr Lam, a neurosurgeon in October 2014. A report of an MRI dated 5 October 2014 recorded a three level stenosis of the cervical spine ranging between significant, moderate and marginal compromise. (At the conclusion of his evidence, a copy of that report was sent to the Tribunal by Dr Vanderzeil's office and was received as Exhibit R7. A copy of it was given to both parties before the conclusion of the hearing.)
3. Dr Vanderzeil confirmed he had no record within his clinical file of neck pain prior to 15 December 2004. On that occasion he obtained a history of the applicant suffering left-sided neck pain thought to have an association with poor work posture over the previous four or five years. He then referred the applicant to Ms Shaw for physiotherapy treatment. On 24 February 2006 he consulted with the applicant after she had returned from six months in Iran and obtained a history of left-sided neck and left shoulder pain with restriction of movement during her absence. On 1 May 2006, the day of the motor vehicle accident, the applicant consulted with Dr Vanderzeil, who recorded a history of the applicant's motor vehicle being struck from behind whilst stationary. The applicant reported left shoulder and neck pain, tenderness and restriction of movement. He prescribed medication and issued a certificate for one day of incapacity but returning to work with restrictions preventing work above shoulder level and without any lifting, pushing or pulling (T4, page 15).

1. Mr Haig, a consultant orthopaedic surgeon examined the applicant at the request of the respondent on 29 July 2014 and provided a report (Exhibit R6).
2. In evidence he said the applicant's pain and discomfort in her neck and left shoulder are associated with degeneration of her neck due to the ageing process. He noted that a frozen shoulder was diagnosed in 1995 but said if it then existed it would no longer be present. He was satisfied the motor vehicle accident of 1 May 2006 exacerbated the pre-existing neck pain (which he understood was first reported on 15 December 2004) but the effects of the exacerbation had settled and ongoing pain is referable only to the effects of age-related degeneration in the cervical spine. That opinion was reinforced by his comparison of MRI reports of the applicant's cervical spine of 19 May 2006 - a few weeks after the motor vehicle accident (T10, page 24) - and 5 October 2014, the latter demonstrating multilevel widespread degenerative changes.
3. Mr Haig said if he had been treating the applicant he would not have recommended physiotherapy treatment except for a few sessions only. In relation to the exacerbated effects of the motor vehicle accident, he would have recommended treatment by simple analgesics, for example paracetamol, and subject to the applicant's tolerance, anti-inflammatory medication when needed. He would have suggested home exercising by comfortable movements on a daily basis which could be achieved by stretching exercises of five minutes duration whilst having a warm shower.

1. Mr Papagoras is a qualified physiotherapist who has been in practice since 1991. He was engaged by the respondent to review the applicant's physiotherapy treatment with Ms Jacobsohn and provide an opinion of whether the ongoing physiotherapy treatment and a 12-month gymnasium membership proposed by Ms Jacobsohn and Dr Vanderzeil were reasonable treatments. His report is found at T130, pages 245 - 247. He reported a conversation he had with Ms Jacobsohn on 11 June 2013 and records her responses, obviously hearsay in nature. It was unfortunate that Ms Jacobsohn was not called. (I do not draw any adverse inference against the applicant who said that Ms Jacobsohn had retired and could not be located).
2. Mr Papagoras recorded that he learnt from Ms Jacobsohn that the applicant's main complaint was of neck stiffness which was temporarily relieved with increased mobility for about one week after each physiotherapy treatment session, which occurred every three weeks. Each session involved massage, mobilisation, ultrasound and review of home exercises. He recorded that Ms Jacobsohn was satisfied the applicant was not improving and was not expected to improve. He also recorded that there was no evidence supporting ultrasound, massage and mobilisation to manage chronic neck stiffness and she found herself in a difficult situation by regularly treating the applicant. She was prepared to discharge the applicant from treatment after three sessions within a one month period and encouraging the applicant to self-manage her pain. He also recorded that Ms Jacobsohn had agreed that a 12-month program at a gymnasium was not reasonable and the applicant was at risk of exacerbating her condition.
3. In evidence, Mr Papagoras was asked to explain a reference made by him in his report to the five Clinical Framework Principles (the Principles) that influenced his opinions and were apparently discussed with Ms Jacobsohn.
4. He said the Principles are found within a publication entitled Clinical Framework For the Delivery of Health Services (the Framework), first adopted by Worksafe Victoria in 2003 and subsequently by the Transport Accident Commission in 2011. He said the Framework has now been accepted throughout Australia, by all workers' compensation and motor accident compensation agencies (with the exception of the Insurance Commission of Western Australia) and peak associations including the Australian Physiotherapy Association, as principles to guide health care professionals in delivery of their services and support them in the treatment of injury. The five principles embodied within the Framework are:
   • 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
5. Mr Papagoras said the use of ultrasound in treatment involves the emissions of sound waves and heat to a patient. He said there was little clinical evidence to support that procedure. He was satisfied that since 2006 the physiotherapy treatment supplied to the applicant by a number of practitioners was not consistent with and did not satisfy the Framework. On his review of the material, there had not been any functional improvement nor any expectation by practitioners of an improvement in the applicant's condition.
6. In his practice, he said he would provide physiotherapy treatment to a patient over a 12-week period but if he was not satisfied that there was remedial and functional improvement he would conclude that physiotherapy treatment was not of assistance and would discharge the patient with instructions for self-management. He said prolonging physiotherapy treatment without functional and remedial benefit created a risk of the patient becoming dependent.
7. He was not satisfied that the applicant was likely to improve by any further undertaking of physiotherapy treatment. The appropriate management of the applicant, in his opinion, was instruction in exercises to be undertaken by her to manage her pain. That would involve instructing the applicant, by demonstrating a number of exercises to be undertaken at home. It may also involve provision of a printed list of instructions. He would also remind the applicant to be alert after sitting at a computer screen or when reading a book to the onset of neck stiffness. When that occurs, he would recommend that the applicant change her posture, stand up and undertake stretching exercises. He would also recommend regular exercise of walking, application of a heat pack and self-massage. During a period of one month, which would involve three sessions consulting about these instructions, he would determine with the applicant whether the self-management was useful and was giving some relief. His objective would be to have the patient become fitter, stronger, have greater range of function and independence.
8. He said it was unusual to request provision of a gymnasium program for 12 months. More than usual would be an objective assessment of progress or improvement after a three month program in order to determine whether it would be reasonable to continue with it.
9. Mr Papagoras was disappointed with the letter of Ms Jacobsohn of 20 May 2013 (T129, page 243) who recommended provision of ongoing physiotherapy treatment which she believed to be beneficial for the applicant's work-related injury. He said the letter recorded nothing which would inform him of the benefits and outcomes of the physiotherapy treatment, such as improvement in function, nor the cost of it.

1. The respondent's liability to make compensation payments in respect of medical treatment expenses is determined by s 16 of the Act which relevantly is as follows:
   • (1) Where an employee suffers 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. The respondent concedes that physiotherapy treatment is medical treatment within the meaning of the Act. That expression, in so far as it concerns this application is defined in s 4 as follows:

medical treatment means:

...

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

...

(d) therapeutic treatment by, or under the supervision of, a physiotherapist.....

...

Therapeutic treatment, also defined within s 4 includes:

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

1. The relevance of subparagraph (b) above is that in the absence of a direction of a medical practitioner, referral to a gymnasium is unlikely to constitute medical treatment as defined.
2. I am satisfied that the physiotherapy treatment and a 12-month gymnasium program can be embraced by the definition of medical treatment under the Act. Whether the respondent has a liability to meet the cost of it, no less in the circumstances of this application, is a separate issue. This warrants an examination of whether the treatment claimed by the applicant is reasonable for the employee to obtain in the circumstances.
3. In Comcare Australia v Rope [2004] FCA 540; (2004) 135 FCR 443, Stone J noted at [16] that there was a surprising dearth of judicial authority interpretation of s 16(1) and the question of whether it is reasonable for a claimant to obtain certain medical treatment. Her Honour decided that the expression reasonable to obtain in the circumstances requires a costs/benefit analysis which involves weighing the benefit of certain treatment against the cost of obtaining it. Her Honour also drew attention to the decision of Gray J in Jorgensen and Commonwealth of Australia (1990) 23 ALD 321 who had at [12] decided that the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from the particular injury. The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation.
4. In the decision of Comcare v Holt [2007] FCA 405; (2007) 94 ALD 576, Mansfield J at [25] followed the decision of Stone J in Rope and agreed that the costs/benefit analysis is appropriate. His Honour decided at [26] that there may be circumstances where proposed therapeutic treatment will be unreasonable if alternative treatment is available for potentially similar benefits at a lesser cost. His Honour also decided that the extent to which treatment has been undertaken in the past and the degree of its success may also be relevant. Equally, past treatment which has provided 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.
5. The above decisions are important in comprehending and interpreting s16 of the Act. Remarkably, there are a number of decisions of the Tribunal concerning the issue of the reasonableness of physiotherapy treatment and the cost of it.
6. In Chowdhary and Comcare [1998] AATA 448 at [53], the Tribunal decided:

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

1. There have been some decisions of the Tribunal subsequent to Chowdhary where similar findings were made. The evidence in those applications has also indicated a preference for the injured person to engage in self-management therapy.
2. In Catterick v Comcare [2013] AATA 21, the Tribunal found at [109] that the applicant had undertaken 93 physiotherapy treatment sessions, without sustained benefit. It decided that it would not be reasonable for Comcare to continue to pay the cost of physiotherapy treatment. It also noted at [107] the medical evidence which supported a finding that the applicant should move [from passive therapies] to more active self-directed therapies, particularly an exercise regimen.
3. In Popovic and Comcare [2000] AATA 264; (2000) 64 ALD 171, the applicant had engaged in 362 physiotherapy visits between 1988 and 1997. The Tribunal decided at [28], on the basis of the evidence that it heard that passive physiotherapy treatment had no place in the treatment regime of a person with chronic pain syndrome. Continuation of ineffective passive modalities was counter-productive because any benefit is outweighed by the likelihood that the patient would enter into a dependent state, inhibiting an ability to cope and embark on self-management.
4. During the hearing of this review, counsel for the respondent submitted that two recent decisions of the Tribunal were relevant to a determination of the reasonableness of persons engaging in long-term physiotherapy treatment. Particularly of note was the consideration given by the Tribunal members to the Framework. Those decisions were Alamos and Comcare [2014] AATA 629 and Durham and Comcare [2014] AATA 753.
5. In Alamos, the applicant had undertaken more than 300 sessions of physiotherapy treatment between 2006 and 2014. In Durham, the applicant had undertaken 631 sessions of physiotherapy treatment between 1996 and 2013; (Senior Member Ettinger found that the applicant had become habituated).
6. Deputy President Constance in Alamos at [26] and [27] heard evidence from an orthopaedic surgeon that ongoing physiotherapy treatment would not change the applicant's pathology or lead to long-term improvement in her symptoms. It was his opinion that the applicant should undertake stretching exercises and try and maintain her general level of mobility. Senior Member Ettinger in Durham at [39] heard evidence from a surgeon who supported the view that [i]f 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 should be made known to the patient which are designed to strengthen muscles which is the key to success, not passive treatment from third parties. Both Tribunal Members were satisfied the medical evidence had merit and ongoing physiotherapy was not reasonable treatment.
7. The definition of therapeutic treatment does add a layer of complexity. It causes the enquiry to focus on whether the treatment has the purpose of alleviating an injury when considering reasonableness of treatment.
8. In Comcare v Watson [1997] FCA 149; (1997) 46 ALD 481 at 484, Finn J considered the definition of therapeutic treatment as appearing within the definition of medical treatment. A summary of his findings include:
   • (a) a course of treatment designed or aimed at alleviating pain caused by injury or disease, is therapeutic treatment;
   • (b) subparagraph (b) of the definition of medical treatment in s 4 of the Act has multiple requirements - it must be therapeutic, have its purpose as the treatment of an injury and the treatment must be obtained at the direction of or prescribed by a doctor;
   • (c) treatment which is therapeutic does not have the objective of curing a disease or an injury. A beneficial interpretation of the word therapeutic permits treatment of that type to have the purpose of alleviating an injury;
   • (d) therapeutic treatment as defined has a purposive activity;
   • (e) an indicator of purposive treatment of an activity prescribed by a doctor will emerge from a level of monitoring it to determine whether the purpose has been realised;
   • (f) some forms of treatment may require close checking;
   • (g) some forms of treatment may be self-monitored, once prescribed.
9. Taking into account therefore the above decisions, and the evidence heard and read in this review, I am satisfied that the reviewable decision in so far as it refused liability to meet the cost of a 12-month gymnasium program should be affirmed. The remaining part of that decision, namely the acceptance of liability by the respondent to fund the cost of three sessions with a physiotherapist within a one month period to instruct, encourage and empower the applicant to self-manage her injuries should also be affirmed. At the risk of stating the obvious, I am satisfied that the respondent does have a liability to meet the cost of that process, it being therapeutic treatment because it will be conducted under the supervision of a physiotherapist and it will have the purpose of alleviating the applicant's injuries.
10. The applicant has engaged in physiotherapy treatment for many years but without any alleviation of her injuries. At best, those consultations have done no more than provide her with temporary reduction in her levels of pain and minimal but temporary increases in mobility and independence. It is very unfortunate that there has not been recognition by her practitioners that the applicant has become dependent upon them rather than them directing her focus towards appropriate and competent instruction of appropriate self-management strategies.
11. It would also appear that there has not been any determination by her physiotherapy practitioners of the effectiveness of their treatment. The Framework was first published in 2003 when it was then adopted by Worksafe Victoria. It has been in existence throughout the time the applicant has been engaged in physiotherapy treatment.
12. Principle One of the Framework - measure and demonstrate the effectiveness of treatment - is as follows:
    1. Treatment should result in a measurable benefit to the injured person.
    2. Relevant aspects of the person's health status that are expected to change with treatment should be measured (such as pain, depression, activities of daily living, health-related quality of life and work performance).
    3. When available, outcome measures that are reliable, valid and sensitive to change should be used.
    4. Outcome measures must be related to the functional goals of therapy, relevant to the person's injury, and address the components of the World Health Organisation International Classification of Functioning, Disability and Health.
13. 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.
14. An indicator of the failure by the physiotherapy treatment undertaken since 2004 to alleviate the applicant's symptoms has been an examination of her domestic activities presently with those activities that were the subject of enquiry by Mr Khan in 2006.
15. During this review, in 2015, the applicant said she was able to cook meals but with the help of her husband, she was able to load the washing machine, shop for groceries (but her husband lifted bags from the car) and could drive her car for short distances. She is unable to use a vacuum, hang clothes on the washing line and undertake gardening. She does very little ironing and reading.
16. In his report of 18 April 2006 (T93, page 158), Mr Khan, who assessed the applicant on that day, it being about two weeks before the motor car accident of 1 May 2006 obtained a history (at page 163) that the applicant's family helped her in strenuous duties including vacuuming and hanging clothes. She did not carry shopping bags or undertake gardening. She was able to cook.
17. A comparison of the activities able to be undertaken by the applicant as recorded above, does not indicate any functional improvement. In my view that points to an absence of her symptoms of the injuries being alleviated. On that basis, the physiotherapy treatment to date has been unsuccessful other than to provide short-term symptomatic relief only.
18. Additionally, a comparison of the MRI reports of 2006 and 2014 point to a worsening of the cervical spine, by age-related degeneration, consistent with the evidence of Mr Haig. On 1 May 2006 the applicant was, 57 years of age. She is presently 66 years of age.
19. Principal Three of the Framework - empower the injured person to manage their injury - records:

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.

By following a biopsychosocial approach and the principle of empowerment, health professionals, families and other key parties (such as employers), can support injured people to become independent in their health and injury management.

1. 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.
2. In relation to the challenge by the applicant to the denial of liability by the respondent to pay for a 12-month gymnasium program, it is impossible to consider or form an opinion about whether symptoms are likely to be alleviated as a result of the program, in the absence of any supporting evidence. Dr Vanderzeil made no mention of gymnasium type treatment in his report of 22 December 2014 (Exhibit A4). In his letter to the respondent of 15 January 2013 he recorded no more than his opinion that the applicant would benefit from a gymnasium membership in order to manage her symptoms. Ms Jacobsohn in her letter to the respondent of 16 January 2013 requested funding for a gymnasium membership because it would assist strengthening the applicant's muscles and assist recovery. (Mr Papagoras recorded in his report that Ms Jacobsohn, during his conversation with her, resiled from her recommendation of provision of a gymnasium program, because it risked exacerbating the applicant's symptoms.)
3. Mr Papagoras was not adverse to a person attending a gymnasium whilst also having a course of physiotherapy treatment but subject to proper instruction to the patient concerning the activity that should be undertaken, the degree of supervision or instruction available to be offered by appropriately qualified personnel, a letter to the gymnasium recording program details a patient should undertake and routine measurement of functional improvement. None of that criteria can be discerned from the letters completed by Dr Vanderzeil or Ms Jacobsohn. It is not possible to find that the applicant's symptoms are likely to be alleviated in the absence of any evidence of attention being given to these issues, which would be embodied in any referral.
4. The applicant can now take advantage of the opportunity given by the reviewable decision to undertake instruction in appropriate self-management strategies which if practiced properly and optimistically are likely to give her some sustained symptomatic and functional improvement.
5. I have not been influenced by the conversation between Mr Papagoras and Ms Jacobsohn. To do so, in her absence, would be unfair. This decision has had regard only to the evidence, heard and read, and the authorities cited earlier.

1. For all of the above reasons I am satisfied that the decision under review, varying the determination, should be affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member

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

Leanne Kellett, Australian Postal Corporation Litigation Section