COMPENSATION - massage therapy - whether reasonable to obtain treatment in the circumstances - factors for consideration

Comcare v Watson [1997] FCA 149; (1997) 73 FCR 273; 24 AAR 516; 46 ALD 481

Re Jorgensen and Commonwealth (1990) 23 ALD 321; 11 AAR 543

Re Chowdhary and Comcare (AAT 13003, 22 June 1998)

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

Re Sait and Comcare [1999] AATA 984

Re Richards and Australian Postal Corporation [2001] AATA 367

Re Kentish and Telstra Corporation Ltd [1999] AATA 661

Re Fox and Department of Defence (1995) 22 AAR 402; 40 ALD 614

Department of Defence v Fox (1997) 24 AAR 171

1. On 18 September 2000 Comcare (the Respondent) made a determination in relation to the compensation claim of Mrs Bojana Mikic (the Applicant), stating that liability would no longer be accepted for massage treatment from 30 November 2000. On 6 November 2000 Mrs Mikic requested a reconsideration and on 12 January 2001 Comcare affirmed this determination.

2. On 15 January 2001 an application for review was made to the Tribunal (matter A2001/31). There were in fact two distinct issues decided in the reviewable decision, but in relation to the second (the number of hours per week Mrs Mikic was deemed able to work) the application for review has been withdrawn.

3. On 25 June 2001 Comcare approved a maximum of one session of massage treatment per week up to and including 30 September 2001. However, on 6 July Comcare revoked this approval after a reconsideration of its own motion. As a result Mrs Mikic made a second application for review to the Tribunal on 13 July 2001 (matter A2001/291).

4. The hearing for both these matters was held on 24 and 25 January 2002. At the end of the hearing oral reasons for decision were given, varying the decision under review in matter A2001/31 and setting aside the decision under review in matter A2001/291. On 29 January 2002 the Tribunal received a request for written reasons from Comcare's solicitor pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.

5. Mrs Mikic was born on 1 February 1949. She worked as a laundry assistant from 1976, at a later stage becoming an employee of Totalcare, until suffering what was then diagnosed as tenosynovitis in 1991. The formal description of her accepted compensable condition is now "right elbow epicondylitis and associated chronic muscle strain right shoulder girdle and paracervical muscles". However, the Tribunal notes that as is apparent from the documentary evidence the majority of doctors consulted in this case think the epicondylitis has long since resolved. The condition has been described more generally as regional pain syndrome. The precise description of Mrs Mikic's condition is not an issue of concern between the parties in this matter.

6. Mrs Mikic has returned to work part time with modified duties. At times she has ceased work for an extended period, but not always because of the compensable condition. For example in 1999/2000 she ceased work for a time because of arthritis in her hands, and in about 1994 she appears to have had time off work because of peripheral vascular disease in her leg. She also spent a period of several months visiting family overseas on one occasion.

Issues Before the Tribunal and Relevant Legislation

7. The principal provision that falls for consideration in this case is subsection 16(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act):

16 Compensation in respect of medical expenses etc.

(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 was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

8. This in turn necessitates a reference to two definitions contained in the Act:

(1) In this Act, unless the contrary intention appears:

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

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

9. It is common ground between the parties that massage treatment is therapeutic treatment and that the treatment Mrs Mikic seeks is at the direction of a legally qualified medical practitioner. Thus this massage treatment is medical treatment for the purposes of section 4 and section 16 of the Act. The only issue before the Tribunal is whether it is treatment that it is reasonable for Mrs Mikic to obtain in these circumstances.

10. The Tribunal had before it the following documents which were taken into evidence

* Set 1 - the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 in matter A2001/31 (the documents within the set were labelled T1-T19)

* Set 2 - the section 37 documents in matter A2001/291 (labelled T1-T16)

* Set 3 - relevant extracts from the section 37 documents of a closed Tribunal file from a previous application by Mrs Mikic (A2000/433), which contained much of the history of her compensable condition. The documents admitted into evidence for these proceedings were T33, T37, T42, T46, T54, T56, T62, T67, T75, T77, T80, T82, T89, T123, T127, T154, T160, T161, T163, T171 and T179

* Exhibit A1 - Applicant's Statement of Facts and Contentions dated 8 June 2001

* Exhibit A2 - statement of Mr Milan Mikic (the Applicant's husband) dated 18 January 2002

* Exhibit A3 - medical report of Dr Edwin Cassar dated 18 January 2001

* Exhibit A4 - letter to Dr Cassar dated 21 June 2001 and his report in response dated 28 June 2001

* Exhibit A5 - medical report of Dr Gytis Danta dated 17 January 2002

* Exhibit R1 - Respondent's Statement of Facts and Contentions, dated 20 June 2001

* Exhibit R2 - medical report of Dr Kenneth Muirden, dated 30 March 2001

* Exhibit R3 - supplementary report of Dr Muirden dated 18 October 2001, with the briefing letter requesting the report attached (9 October 2001)

* Exhibit R4 - medical report of Dr Graeme Griffith dated 17 January 2001

* Exhibit R5 - report of Ms Margaret O'Donovan (the Applicant's treating physiotherapist) dated 24 July 1995

* Exhibit R6 - report of Ms O'Donovan dated 15 September 1995

* Exhibit R7 - medical report of Dr Lark, Health Services Australia, dated 6 July 2000

* Exhibit R9 - a printout detailing treatments paid for by Comcare in relation to Mrs Mikic's compensable condition

11. Oral evidence was given by Mrs Mikic, Mr Mikic, Dr Cassar (consultant physician in cardiology and rheumatology and director of the pain management unit attended by Mrs Mikic), Dr Danta (consultant neurologist) and Dr Muirden (consultant rheumatologist).

12. There are a number of matters where the findings are uncontentious. First, Mrs Mikic has suffered a relevant compensable injury for the purposes of section 16(1). Secondly, from 1992 to 2000 Comcare made payments totalling approximately $29,000 to massage therapists for treatment of Mrs Mikic (1992-4 $6,400 to a Mr Clews, 1994-2000 $22,400 to Dr Cassar's pain management unit). Thirdly, massage treatment is not curative in the sense that it does not permanently remedy Mrs Mikic's condition. However, it is worth remembering that the definition of therapeutic treatment refers to treatment for the purposes of alleviating an injury (see also Comcare v Watson [1997] FCA 149; (1997) 73 FCR 273; 24 AAR 516; 46 ALD 481).

Is Massage Treatment "Reasonable" in terms of Section 16 of the Act?

13. Counsel for both parties referred the Tribunal to a number of earlier Tribunal decisions dealing with the issue of "reasonable" treatment. One of these was the decision of Gray J in Re Jorgensen and Commonwealth (1990) 23 ALD 321; 11 AAR 543 and in particular the following passage (at 325/547):

In my view, 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.

In Jorgensen the Tribunal found that IVF treatment was reasonable in the circumstances.

14. Reference was made to Re Chowdhary and Comcare (AAT 13003, 22 June 1998), a case involving physiotherapy, and particularly paragraphs 53-4 which talk about the need for a management plan and review of treatment. Similarly, Re Popovic and Comcare [2000] AATA 264; (2000) 64 ALD 171, another physiotherapy case, refers to pain management plans:

(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 interests for passive physiotherapy modalities to have continued beyond 16 September 1997: Re Jorgenson [sic] and Commonwealth (1990) 23 ALD 321.

(29) Even if we found that the short-term therapeutic benefit derived by the applicant was therapeutic for the purposes of the Act, in our opinion it is not reasonable treatment in the circumstances for the reasons mentioned above. To the extent the applicant derives some therapeutic value from the psychological effect of receiving the treatment, psychologists could better provide this in an appropriately devised pain management plan.

15. Reference was also made to Re Sait and Comcare [1999] AATA 984 (paragraphs 37ff, 50) involving chiropractic treatment, and Re Richards and Australian Postal Corporation [2001] AATA 367 (paragraphs 20-1) involving physiotherapy and chiropractic treatment.

16. Re Kentish and Telstra Corporation Ltd [1999] AATA 661 involved vitamin and meal supplements. The Tribunal in Kentish referred to an earlier decision (Re King and Comcare (AAT 13350, 5 October 1998) and quoted the following passage from it:

(24) In determining whether a particular form of treatment is objectively reasonable, applying the test enunciated by Gray J in Jorgensen_, we think allowances should be made in appropriate cases for different schools of thought within the medical profession. If a particular form of treatment is advocated by a significant minority of the medical profession, and is regarded by the majority as controversial, we do not think obtaining that form of treatment would not ordinarily be regarded as unreasonable_ [sic]. If, on the other hand, a patient undertakes treatment on the advice of a doctor whose views are at odds with the rest of the medical profession, one would have to conclude that it was not reasonable to obtain such treatment in the circumstances. Whether a particular form of treatment in particular circumstances enjoys sufficient support within the medical profession to be regarded as reasonable is a question of degree.

(47) In such a scenario, it would appear unreasonable for the Tribunal to deny the applicant access to a treatment, to which there is apparently no viable alternative, about which it can be objectively satisfied is of benefit in the relief of the pain associated with the applicant's compensable condition.

17. There are various other examples referred to in Ballard and Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988 (4th edition) at [16.05]. Examples of treatment found by the Tribunal to be unreasonable have included artificial insemination (in contrast to Jorgensen where IVF treatment was approved), a new car with power steering, and a home spa. Examples of treatment held to be reasonable include a swimming pool used for hydrotherapy, and a new motor vehicle modified to fit an electric wheelchair.

18. Of course, all of these previous Tribunal decisions are not binding upon the current Tribunal. They can only provide some guidance. This case has to be decided upon its own merits. The Tribunal's task is to look at all the relevant material presented in evidence, make findings and a judgment whether massage treatment is reasonable based on those findings.

19. This particular case is not an easy one. Much of the evidence presented was not clearly in favour of one or other of the parties. Taking into account all the evidence the Tribunal makes the following findings.

(i) Massage treatment is beneficial for Mrs Mikic's condition

20. Mrs Mikic says that massage treatment reduces her pain for about 12 hours. It relieves headaches, and it reduces neck, back and shoulder pain. She accepts it is not curative and that she still needs medication.

21. Dr Cassar gave evidence agreeing that massage was not curative in the sense of a complete remedy. However, his evidence also pointed to the condition involving a swelling or oedema, and he said that the swelling is dissipated by massage and therefore its use can make the body function more effectively.

22. Dr Muirden on the other hand disputed whether there was any swelling. He accepted that massage could assist with oedema, although he said massage is generally just soothing and considered that to be the case here. Dr Griffiths would not support continued massage in this case. Dr Danta essentially said that if Mrs Mikic finds massage beneficial, then it is acceptable to him.

23. The overall weight of the evidence is in favour of massage treatment being of benefit to Mrs Mikic.

(ii) Adverse consequences of continuing massage

24. Dr Muirden posited two potential disadvantages of continuing massage for long periods. The first was that massage might provide a degree of dependency and distract individuals from undertaking more beneficial forms of active treatment. However, here there has been a certain amount of active treatment undertaken, including stretching exercises while at work. There has also been a gym assessment for Mrs Mikic that found her particularly sensitive to exercise, which was the reason a more vigorous program was not pursued.

25. Secondly, Dr Muirden pointed to the possibility that massage may aggravate the pain which it is intended to relieve, especially if the patient suffers from allodynia as is the case here. However, in this matter there is no evidence that professional massage has aggravated Mrs Mikic's pain.

(iii) Alternative remedies, other than medication

26. Mrs Mikic has tried a range of possibilities including aqua aerobics, physiotherapy, a TENS machine, acupuncture, cups, heat packs and hot baths. On the evidence the Tribunal finds that all of these have had limited benefit. Certainly Mrs Mikic said massage has proved very much more beneficial than the alternatives.

27. The evidence shows that Mrs Mikic has taken a wide range of medications, not only for her regional pain syndrome but also for other conditions such as arthritis and migraine.

28. There is dispute as to whether massage resulted in a reduction in the use of medication over time. Counsel for Comcare, Mr O'Donovan, referred to the changes at various times in Mrs Mikic's use of Oxycontin. Any finding in this area is made more difficult due to the multiple conditions for which Mrs Mikic has taken medication, and also because of the long-term adverse effects of certain drugs such as Panadeine Forte. Mrs Mikic and Dr Cassar's evidence, however, is that without massage they have had to seek to use various medications as an alternative. These have not proved suitable or successful. The Tribunal accepts this evidence.

29. Dr Cassar said in his evidence that massage was only one element in a three-pronged program. First, psychological treatment is used to provide Mrs Mikic with an understanding of why she suffers pain and how she can manage it. Secondly, there is a physical component involving exercise in the workplace. Thirdly, a medical element that includes massage for reduction of swelling and pain, which Dr Cassar described as curative in the short term. This massage was needed at least weekly and sometimes twice a week. This broader program is reviewed at each and every visit to prevent damage, to ensure the benefit is continued, to look at the frequency of treatment and to terminate elements of the program if no benefit is found.

30. Mrs Mikic's evidence is that massage has enabled her to go back to work, although there have been significant periods when she has been absent. Dr Cassar said that when he commenced treating Mrs Mikic in 1994 she was not working. He was able improve her state so that she was working 12 hours per week for approximately five years. His aim has been, and still is, to enable Mrs Mikic to work for 20 hours per week. Dr Cassar says that he has been seeking to improve Mrs Mikic's functionality, not just relieve her pain. He also asserts very strongly that stopping massage from November 2000 has interrupted this program.

31. Mr O'Donovan for Comcare pointed to evidence that the effect on work patterns has been very erratic and there has never been an increase past 12 hours per week. On the other hand Ms Walker for Mrs Mikic referred to periods off work which have been due to other factors, such as arthritis, a hysterectomy and an overseas trip.

32. Taking the evidence overall the Tribunal finds that the massage has improved Mrs Mikic's functional work capacity.

33. The Tribunal accepts Mrs Mikic's evidence that massage has "given her a life". This is a not insignificant factor. The Tribunal was taken by Ms Walker to the decision in Re Fox and Department of Defence (1995) 22 AAR 402; 40 ALD 614, which talks about a holistic approach to rehabilitation rather than concentrating exclusively on ability to work. This approach was approved in the Federal Court (Department of Defence v Fox (1997) 24 AAR 171). Massage has improved Mrs Mikic's overall functional capacity.

34. The cost of the treatment is very significant. From 1992 to 2000 inclusive, a period of nine years, the cost has been about $29,000, or approximately $3,200 per year. The Tribunal accepts Mr O'Donovan's assertion that this has been a very significant cost to Comcare and to the community.

35. In summary, Mr O'Donovan for Comcare submitted that after nine years and $29,000, a very significant cost, there has been only a short-term benefit. He submitted that there has been a general decline in Mrs Mikic's functionality and she has never worked more than 12 hours per week. Massage brings with it potential risks. Because of the lack of success it can no longer be regarded as reasonable for Mrs Mikic to obtain massage treatment. On the other hand, Ms Walker for Mrs Mikic submitted that massage has kept Mrs Mikic active, has enabled her to undertake a degree of employment and has made her "feel alive again".

36. As has already been said, this is no easy task. Taking into account all the evidence, including that which has not been detailed in these written reasons, and the submissions of both parties, the answer is still not at all clear-cut.

37. Extrapolating from the words of the Tribunal in Kentish, it would appear unreasonable for the Tribunal to deny Mrs Mikic access to a treatment to which there is apparently no viable alternative, and which it can be objectively satisfied is of benefit in the relief of the pain associated with her compensable condition and is of benefit in the improvement of her functional capacity.

38. The Tribunal finds that massage treatment from November 2000 is reasonable in terms of section 16 of the Act in Mrs Mikic's case.

39. In the matter of A2001/31 the Tribunal varies the reviewable decision of 12 January 2001 and decides that the Respondent pay the costs of massage treatment at the direction of the Applicant's treating medical practitioner from 30 November 2000 and ongoing. The Tribunal orders the Respondent to pay the Applicant's costs as agreed or taxed.

40. In the matter of A2001/291 the Tribunal sets aside the reviewable decision of 6 July 2001, and in substitution decides that the Respondent pay the costs of massage treatment at the direction of the Applicant's treating medical practitioner from 30 November 2000 and ongoing. The Tribunal orders the respondent to pay the Applicant's costs as agreed or taxed.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of G A Mowbray

Signed: .....................................................................................

Solicitor for the Applicant Ms Rachael James (Richards Lawyers)

Solicitor for the Respondent Ms Cathy Dowsett (Australian Govt Solicitor)