COMPENSATION - medical treatment - ongoing physiotherapy - whether treatment was reasonable for the employee to obtain - decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 16(1)

Chowdhary and Comcare [1998] AATA 448

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

Re Popovic and Comcare [2000] AATA 264

Smith and Telstra Corporation Limited [2002] AATA 335

Websdale and Telstra Corporation Limited [2005] AATA 672

Transport Accident Commission and Victorian WorkCover Authority, Clinical Framework for the Delivery of Health Services

1. Mrs Alamos was employed by the Department of Defence from 1981 until 2005. Her work involved inspecting packages received by the Department. To do this she was required to lift the packages and place them on pallets.
2. In December 2000 Comcare accepted liability for an "aggravation of lumbosacral (joint) (ligament) strain" as it was satisfied that the condition was work related.[1] Comcare also accepted liability to compensate Mrs Alamos for treatment expenses associated with her injury. From 2000 until mid-2006 her treatment included regular massage therapy.
3. In mid-2006 Mrs Alamos commenced weekly physiotherapy sessions to treat her injury. Comcare met the cost of this weekly treatment until 10 February 2014.
4. On 17 January 2014 Comcare determined that:

... consistent with [a] revised treatment program, under section 16 of the Safety, Rehabilitation and Compensation Act 1988..., the following treatment is accepted as reasonable:

• Physiotherapy:
  • 1 session per week, up to and including 9 February 2014
  • 1 session per fortnight, from 10 February 2014 to 6 April 2014
  • 1 session per month, from 7 April 2014 to 6 May 2014.[2]

The determination was affirmed by Comcare on 7 March 2014.

1. Mrs Alamos seeks a review of Comcare's decision to deny liability to compensate her for physiotherapy treatment after 6 May 2014.

LEGISLATION PROVIDING FOR COMPENSATION FOR MEDICAL EXPENSES

1. Subsection 16 (1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:

(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 subsection 4(1) to mean, in part:

... therapeutic treatment by ... a physiotherapist ... registered under the law of a State or Territory providing for the registration of physiotherapists ...[3]

Therapeutic treatment "includes ... treatment given for the purpose of alleviating an injury".[4]

1. Two issues arise in this application:
   • (1) Is the treatment received by Mrs Alamos "medical treatment"?
   • (2) If so, was the treatment "reasonable for the employee to obtain in the circumstances"?

1. Unless stated otherwise the following findings of fact, together with the facts stated in the introduction to these reasons, are based on the evidence of Mrs Alamos. I am satisfied that she was an honest witness who gave her evidence to the best of her recollection.
2. Mrs Alamos has received physiotherapy treatment from Mr Bolla, Physiotherapist, regularly since 2006, usually on a weekly basis. On occasions when Mrs Alamos went on holidays, she did not receive treatment for periods of up to one month. The physiotherapy has improved her flexibility and, in conjunction with analgesic medication, relieved the pain in her back. The effects of each treatment lasted for 3 to 4 days.
3. Prior to commencing physiotherapy treatment Mrs Alamos received massage treatment, hydrotherapy and engaged in a muscle-strengthening program at a gym. The physiotherapy gave her greater relief from pain than the other treatments.
4. Since Comcare decided not to pay for continuing treatments, Mrs Alamos has paid for some treatments and has been reimbursed by Medicare for others. She has continued with a home-exercise program given to her by Mr Bolla.
5. Further, since being advised that Comcare would not continue to meet the expenses of weekly treatments, Mrs Alamos has been advised by her doctors that on three occasions she has suffered from panic and anxiety attacks. She believes that these attacks are a result of her being advised that the physiotherapy treatment would not be funded on an ongoing basis and her resulting fear that her health and independence will be adversely affected.[5]

1. Mr Bolla is a registered physiotherapist in New South Wales. He has treated Mrs Alamos since 2006.
2. The treatment provided consisted of soft tissue relief, mobilisation and exercise for the chronic lumbar spine condition from which Mrs Alamos suffers.
3. In a report dated 7 May 2014 (i.e. after the conclusion of the period of reduced sessions) Mr Bolla stated, in part:

According with the chronic lumbar disorder, there is no evidence that physiotherapy will cure the current progression of the lumbar condition however it could reduce the symptoms temporarily allowing the patient to maintain a reasonable level of functionality and continue with exercise program to maintain flexibility and slow progression of core strength.[6]

Issue 1: Was the physiotherapy treatment being received by Mrs Alamos "medical treatment"?

1. To answer this question it is necessary to decide whether the physiotherapy was "treatment given for the purpose of alleviating injury" (emphasis added) and therefore "therapeutic treatment" within the definition of "medical treatment".
2. In interpreting the words of an Act the first step is to apply the ordinary meaning of the words used. The ordinary meaning of the words "alleviating an injury" do not require that the treatment be curative.[7] The Macquarie Dictionary Online includes in the meaning of "alleviate":

to make easier to be endured, lessen, mitigate, e.g. to alleviate pain.

1. The Oxford English Dictionary Online gives a similar definition:

To make (pain, suffering etc.) less severe, to relieve, to ease, reduce.

1. On the basis of the evidence of Mrs Alamos and Mr Bolla, I am satisfied that the weekly treatments of physiotherapy were given for the purpose of relieving the injury suffered by Mrs Alamos and of making it easier to endure. It follows that the treatment was "therapeutic treatment", and therefore "medical treatment" within subsection 16(1) of the Act.

Issue 2: Was the treatment "reasonable for the employee to obtain in the circumstances"?

1. This is the more difficult question. I accept that Mrs Alamos obtained relief from the pain she suffers and gained flexibility following each session of treatment. I accept also that she has suffered stress as a result of the prospect of not being able to continue with the treatment.
2. Mrs Alamos' claim that she requires physiotherapy treatment on a weekly basis is supported by Dr Lim, her General Practitioner. On 14 February 2014, [8] Dr Lim reported, in part:

I believe that Mrs Alamos' condition merits ongoing and indefinite physiotherapy treatment so as to enable her to have, and maintain a reasonable quality of life.

1. However the requirement of subsection 16(1) is that for compensation to be payable in respect of the cost of medical treatment obtained in relation to an injury, the treatment must "reasonable for the employee to obtain in the circumstances ...". In considering this requirement, it is necessary to consider all of the circumstances, and not only the beneficial effects experienced by Mrs Alamos.
2. Without intending the list to be exhaustive, some of the factors which may be relevant considerations in the circumstances are:
   • the benefit of the treatment to the injured worker;
   • the long-term effect of the treatment;
   • whether the treatment is likely to cure the injury or significantly reduce its effects;
   • whether the treatment maintains the status quo;
   • the cost of ongoing treatment.
3. There is significant evidence that the provision of long-term physiotherapy is not in the best interest of Mrs Alamos.
4. Dr Pillemer, Orthopaedic Surgeon, examined Mrs Alamos on 2 July 2014 for the purposes of these proceedings. He provided a report dated 2 July 2014,[9] and gave evidence at the hearing.
5. In the opinion of Dr Pillemer, Mrs Alamo suffers from:

... generalised lumbar spondylosis being particularly marked at the L4/5 level with no evidence of any neurological involvement.... As far as treatment is concerned, she basically needs to avoid activities that aggravate her symptoms and needs to continue with her exercises, being abdominal and back muscle strengthening exercises, and also doing stretching. She needs to try and maintain her general level of mobility.

... ongoing physiotherapy treatment is not medically necessary or indicated. As noted she has been having physiotherapy once per week for years, and this will not change her pathology or lead to any long term improvement in her symptoms. [10]

1. In late 2013 and early 2014 Mr Papagoras, Physiotherapist, conducted a review of Mrs Alamos' situation on behalf of Comcare. On 13 January 2014 he reported:

The injured worker has reportedly made little improvement and is not expected to make further improvement.

At this stage of recovery, the provision of regular, ongoing treatment is not consistent with the elements of the Clinical Framework as treatment is not resulting in sustainable improvement, it is not in accordance with a biopsychosocial approach to the management of pain, does not empower the injured worker to take on a greater role in self-management, does not appear to have functional goals and is not evidence-based.

......

After considering the stage of recovery, the treatment effect and the Clinical Framework principles, it was agreed with the treating physiotherapist that treatment gradually reduce and then cease with a discharge to self-management...[11]

1. As Mr Papagoras indicated in his report, he discussed Mrs Alamos' treatment with Mr Bolla. During this discussion, Mr Bolla indicated that he does not believe that "physio forever" is reasonable, and that he was agreeable to treatment gradually reducing and then ceasing with a discharge to self-management. Mr Bolla said that the discharge plan was reasonable, although he acknowledged that Mrs Alamos would not be agreeable.
2. Mr Bolla reiterated this position in his oral evidence at the hearing. He stated that he believed that "physio forever is not going to work in the way of any more improvement" in terms of a cure for Mrs Alamos' condition. Importantly, Mr Bolla stated that "we can establish a bit of balance" between physiotherapy treatment and a home exercise program. This, he suggested, could involve management of Mrs Alamos' condition through a home exercise program guided by him, and then physiotherapy treatment when her condition deteriorates and she experiences a flare-up.
3. Counsel for Comcare referred me to the Clinical Framework for the Delivery of Health Services a joint presentation of the Victorian Transport Accident Commission, Worksafe Victoria and the State Government of Victoria. Although it is supported by Comcare and other Federal and State organisations, it is not official Commonwealth government policy. Nevertheless it is appropriate for consideration.
4. In the Foreword to the Clinical Framework it is stated:

The Clinical Framework outlines a set of guiding principles for the delivery of health services. These principles are intended to support healthcare professionals in their treatment of an injury through:

• Measurement and demonstration of the effectiveness of treatment
• Adoption of a biopsychosocial approach
• Empowering the injured person to manage their injury
• Implementing goals focused on optimising function, participation and return to work
• Base treatment on best available research evidence.[12]

1. One of the stated principles in the Clinical Framework is to "empower the injured person to manage their injury."[13] It says in part:

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.[14]

1. This is consistent with previous decisions of this Tribunal. In Re Popovic and Comcare ,[15] the Tribunal said:

In relation to the applicant's claim for physiotherapy treatment expenses, in our view there is no role for passive physiotherapy in the applicant's current treatment regime. The physiotherapy he was having could not improve him in the long term, has limited, if any, short-term benefit, and may in fact be contra-indicated. Any therapeutic benefit he received was small and short-lived. We accept that pain relief, even short-term relief or reduction in pain, can be therapeutic. However in this case any benefit is outweighed by the counter-productive effect with leading the applicant to a dependent state, inhibiting his ability to learn to cope, and embark on pain management programs to assist him with that object. [Authorities omitted]. [16]

1. Furthermore, in Chowdhary and Comcare,[17] the Tribunal held that:

... there is no evidence of any plan to have 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. The Tribunal has found on a number of occasions that regular physiotherapy or chiropractic treatment was not reasonably obtained. In Smith and Telstra Corporation Limited,[18] the Tribunal considered long-term physiotherapy for a back condition which included cumulative soft tissue damage that contributed to disc and facet joint degeneration. The Tribunal found that the physiotherapy was palliative but not reasonable for the employee to have obtained.
2. In addition, the Tribunal considered regular chiropractic treatment providing short-term pain relief with consequent increased mobility and reduced use of analgesics, in Websdale and Telstra Corporation Limited.[19] Despite the short-term benefits of regular treatment, the Tribunal held that it was not reasonable for the applicant to obtain chiropractic treatment at the time of the decision.
3. Mrs Alamos has undertaken more than 300 sessions of physiotherapy which her evidence suggests only results in a short-term alleviation of symptoms. In such circumstances, as noted by the Tribunal in Chowdhary and Popovic, it may not be reasonable to obtain ongoing treatment.
4. The medical evidence strongly supports a conclusion that it is not reasonable for Mrs Alamos to obtain ongoing physiotherapy at present. Even taking into account that Dr Lim is Mrs Alamos' general practitioner and is supportive of indefinite physiotherapy, I prefer the evidence of Dr Pillemer and Mr Papagoras that ongoing physiotherapy is not medically indicated and will not provide long-term improvement in Mrs Alamos' condition. I also note that Mr Bolla does not believe that weekly physiotherapy sessions should be used as treatment indefinitely.
5. Comcare has compensated Mrs Alamos for over 300 sessions of physiotherapy. I do not have evidence of the actual cost of these sessions but it would be significant. In my view the benefit to be gained by Mrs Alamos from continuing such treatment is outweighed by the cost which would be incurred and the possible benefits of alternative treatment.
6. In the circumstances, ongoing physiotherapy is not a form of treatment which has been reasonable for Mrs Alamos to obtain at any time since 6 May 2014. I accept the evidence that the home-based exercise plan is a reasonable form of treatment for Mrs Alamos' condition at this stage. It may be that sometime in the future it may be reasonable for Mrs Alamos to seek a review of her exercise program by a physiotherapist, but it is beyond the jurisdiction of the Tribunal to make findings as to compensation payable in the future.

1. The decision under review, being the decision of Comcare made 7 March 2014, will be affirmed.

I certify that the preceding 42 (forty two) paragraphs are a true copy of the reasons for the decision herein of Deputy President JW Constance

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

[3] Subsection 4(1).

[4] Subsection 4(1).

[5] Statement of Mrs Alamos 24 July 2014, being exhibit A1.

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

[15] [2000] AATA 264.

[17] [1998] AATA 448, at para.53.

[18] [2002] AATA 335.

[19] [2005] AATA 672.