2. The respondent must pay the applicant's costs of this proceeding until and including 6 May 2003. Thereafter no order as to costs.

Mr O'Connor, Counsel, instructed by Ryan Carlisle Thomas

1 Ms Edwards was born in 1958 she is married and has two children, a daughter, aged 20 and a son aged 18. Her son has what have been described as special needs.

2 In 1989 Ms Edwards was involved in a motor accident which the respondent Transport Accident Commission through its Counsel, Ms McLeod, concedes was horrific. She suffered multiple injuries including injuries to her liver and spleen. Pertinently for the present proceeding she suffered extensive injuries to her left leg. Her left ankle has now been partially fused and her left knee has been the subject of persistent pain and difficulty. At one stage as Ms Edwards conceded in cross-examination by Counsel for the Commission, serious consideration was given to a partial amputation of the left leg.

3 More recently in January 2002 she underwent an arthroscope procedure for the left knee. The surgeon who performed that arthroscope, Orthopaedic Surgeon Mr O'Loughlin, described this process as one for cleaning out the knee. He said that Ms Edwards may require a partial or entire knee replacement at some time in her life. He said however that these replacement or partial replacement knees have a life of 15 to 20 years maximum and any second replacement is an operation more difficult and fraught with complications than the first replacement. Therefore, surgical policy is to defer knee replacements to as late in life as possible and the program for dealing with Ms Edwards' knee at present is conservative treatment with a view to delaying or avoiding a knee replacement.

4 Another element of the injury to the left leg was that the left leg was shortened. The result then is to leave Ms Edwards with an asymmetrical frame. She says that as a consequence of this she suffers continuing and at times extreme low back pain. It is conceded that no distinct pathology has been detected in the low back. It is not suggested for instance that there is a particular disc lesion, a disc prolapse or a disc bulge; but Ms Edwards complained that she does suffer this continuing pain.

5 In 1995 Ms Edwards commenced receiving physiotherapy at the Cranbourne Central Physiotherapy and Sports Injury Clinic. Her therapist was a Ms Lisa French. This program of physiotherapy was funded by the respondent Transport Accident Commission as part of the medical services which its acceptance of Ms Edwards' claim for compensation under the Transport Accident Act entitles her to. Over the period from 1995 until the 29th of May 2002 the Commission funded some 444 sessions of physiotherapy. In the determination made on the 29th of May, the Commission decided that further physiotherapy sessions would be disallowed and that it was appropriate for Ms Edwards to cope with the orthopaedic and back problems which she suffered by a regime of self-management. The Commission had sent her on a pain management course and as a matter of course, as part of the physiotherapy program that she would have been instructed in exercise and self-management procedures. The Commission decided that she would be allowed a further four physiotherapy sessions and thereafter no further physiotherapy sessions would be funded. Ms Edwards seeks a review of the Commission's determination pursuant to Section 77 of the Transport Accident Act 1986. In addition she sought review of a separate determination of the Commission with regard to a curtailment of her entitlements to home help. That portion of the proceeding is now resolved and I need say no more about it.

6 Mr O'Connor, Counsel for Ms Edwards, submitted that the Commission's determination should be set aside and replaced with a determination that his client should be entitled to weekly physiotherapy with additional sessions available when she suffers exacerbations. He called evidence from the treating physiotherapist, a Ms French, from Ms Edwards treating orthopaedic surgeon, Mr Stanley O'Loughlin and from her treating general practitioner, Dr Longney.

7 Dr Longney said that he sees Ms Edwards every three to four months. He prescribes her Zoloft together with an anti-inflammatory in the form of Celebrex and analgesic medication by way of Panadeine Forte and Mersyndol Forte. He says that he has repeated these prescriptions from time to time on Ms Edwards' visits to him, three or four monthly.

8 In a report which was put into evidence he described her condition as follows:

She continues to experience severe pain in the left knee, causing marked difficulty with her walking, and as a result continuing low back pain. She finds she is unable to do many of the household chores required of her, in particular she is unable to vacuum her floors and mop and clean her bathrooms. Hanging out clothes on the line and taking them off her line is also beyond her, and with all these tasks, she does require home help. With the size of her house and the amount of washing involved, I believe Mrs Edwards would require five hours of home help per week.

She has been accustomed to having physiotherapy available to her, which she uses when she gets an acute exacerbation of pain, in either her low back or her knee. I believe continued access to a physiotherapist for treatment of these continued acute exacerbations is essential to her ongoing treatment.

9 Mr O'Loughlin in a written report to the solicitors for Mrs Edwards dated the 20th of January 2003 under the `Opinion as to whether physiotherapy is contributing to her recovery' said:

I believe physiotherapy and pain management are important components to the treatment and rehabilitation of this lady. She is well-motivated and copes with her disability reasonably well. She does have arthritic changes affecting her left knee. These are secondary and are directly related to her injury. It is quite possible she will require an arthroplasty of the knee in the future, and a good way of delaying this for as long as possible is for her to continue with physiotherapy to keep her quadriceps muscle strong and to protect her knee.

10 In a letter to the Transport Accident Commission dated the 19th of March 2002 Mr O'Loughlin said:

I also feel she should be able to continue with her weekly massage/physiotherapy as this certainly helps her, and is more preferable than offering her a pool pass.

11 The Commission gave a pool pass to the applicant for a number of months at the time that it made its determination. For completeness, I should also observe that Ms Edwards undertakes extensive pool work both to strengthen the quadriceps muscles in accordance with the principles stated by Mr O'Loughlin and also as a weight control measure. The injuries to her left leg have severely restricted her ability to undertake any weight bearing exercise and therefore weight control has become a problem for her.

12 Mr O'Connor also called evidence from Ms Lisa French, the therapist who administered the physiotherapy over the years which I have described. She stressed the need for physiotherapy for the applicant in the case of acute exacerbation in lumbar back pain. She described, for instance, Ms Edwards being in such pain and subject to such restriction that she had to move around on crutches. She said that upon palpation, muscles in spasm were evident. In July 2003 she said she had to undertake an intense program of physiotherapy to alleviate one of these exacerbations of lumbar back pain.

13 Ms McLeod on behalf of the respondent Transport Accident Commission placed a decision of Harper J in the Supreme Court of Victoria in Berger v Physiotherapists Registration Board of Victoria at the forefront of her submission. His honour's judgment was published on the 14th of April 1997 and whilst unreported is to be found at Butterworths Unreported Cases BC 9701405. His Honour said, inter alia:

It does seem to me that physiotherapy, being a skilled profession, a profession with a body of learning and a profession practiced by persons who are qualified to do so only after extensive training, is necessarily a profession that must base its treatment of its patients on objective and insofar as possible scientific considerations. A physiotherapist must have some basis for the objective evaluation of patient benefit;

In nothing that I say should I be taken for a moment to indicate that the benefit or lack of it to the patient is not a mater of ultimate concern. But in order to appreciate what benefit, if any, a patient is receiving form physiotherapy, one must refer back to that body of knowledge that constitutes physiotherapy. One cannot simply say, `Well, the patient was referred by a doctor. The patient tells me that the treatment is of benefit to the patient. The patient tells me that pain is decreasing. Accordingly, treatment will continue.'

But basically we are concerned with whether or not there has been overservicing by physiotherapists. Unless the physiotherapists can say that by reason of demonstrable, measurable effects shown to benefit the patient either by actually increasing the patient's capability, or by maintaining that capability, or by slowing the rate of deterioration - unless it can be shown that physiotherapy has assisted in this way, the further treatment is treatment in the dark; at least so far as the physiotherapist is concerned.

There is a responsibility on the physiotherapist to determine when it is that the point has been reached that physiotherapy is no longer of a measurable benefit to the patient. One cannot measure whether there has been progress by the standards set by that body of learning, unless one has appropriate records.

17 His Honour was dealing with disciplinary proceedings against a physiotherapist accused of overservicing. In Ms McLeod's submission these remarks are apposite to the present dispute. She noted that the entitlement of the subject to reimbursement for physiotherapy services derives from Section 60(1) of the Transport Accident Act 1986. That provision renders the Commission liable for reimbursement to an applicant of reasonable medical services which are necessary as a result of injuries in a transport accident.

18 Medical services are defined in Section 3(1) of the Act to include treatment by a registered physiotherapist. Perhaps unusually Parliament has gone the distance of even defining the concept of reasonableness in Section 3(1) and relevantly it requires in circumstances such as this, a consideration of the service actually provided or proposed to be provided and the necessity or otherwise of that service.

19 Judged against these criteria says Ms McLeod, the Commission will be seen to have acted correctly. She noted that Deputy President Davis in this Tribunal in Russell v Transport Accident Commission an unreported decision published on the 27th of August this year, applied the principle enunciated by Harper J with regard to physiotherapists to the entitlement of an applicant to osteopathic services. Deputy President Davis said in effect that it was insufficient to render reasonable the provision of osteopathic services for the purposes of the Transport Accident Act that there was some benefit felt by the applicant when the therapy was not part of a planned program with some ultimate objective in view. Hence, she affirmed the Commission's determination to cut off any entitlement to on-going osteopathic services. Here, Ms McLeod asserts that there is little to justify the continuation of weekly physiotherapy services.

20 Mr O'Loughlin, the treating orthopaedic surgeon paid little heed to Ms Edwards' back problems. He did not seem to have been invited to treat them at all. The burden of the commentary in his written report was as to the importance of strengthening her quadriceps muscles. As the passage from his report which I have quoted indicates, therapy therefore would be aimed at strengthening the quadriceps muscles. This can be done by self-management by way of exercise and the applicant in the witness box demonstrated leg raising exercises which were calculated to strengthen and maintain strength in the quadriceps muscles. In addition as previously noted, she undertakes extensive pool work which is aimed at achieving that result as well as weight control.

21 In his written report Mr O'Loughlin made reference only to these matters. The flavour of Ms Edwards' evidence was that the physiotherapy was aimed more at her back problem and not at strengthening the quadriceps muscles. The reference in the letter of March 2002 to weekly physiotherapy by Mr O'Loughlin was to some extent a throwaway line and not particularly related to the evidence which he gave in the Tribunal. Insofar as Dr Longney is concerned, again he did not particularly advocate weekly physiotherapy. Ms McLeod referred to his clinical notes which made no reference to pain before sometime in 2000. This was not consistent she said with a patient who had the need for physiotherapy which the present application asserts.

22 Further, Ms McLeod drew attention to what one might describe as an anomaly in the application. The matter was opened to me upon the basis that the applicant self-funded her physiotherapy since the Commission's determination, presumably with a view to demonstrating the necessity for the treatment as evidenced by the applicant's willingness to pay for it out of her own pocket. Examination of Ms French however disclosed that the apparently very frequent provision of physiotherapy services recorded on a report from the practice manager of Cranbourne Central Physiotherapy and Sports Injury Clinic dated the 21st of August 2003 reported predominately provision of massage therapy and not physiotherapy at all. It was the submission of Ms McLeod that massage therapy was not physiotherapy at all. Moreover, massage therapy was not reimbursable at all under the Transport Accident Act 1986.

23 Mr O'Connor on behalf of the applicant submitted that massage therapy could properly be characterised as a rehabilitation service. There was a separate definition of rehabilitation services. Section 3(1) of the Transport Accident Act and Section 60 of the act renders the Commission liable equally for reasonable rehabilitation services as for reasonable medical services. Mr O'Connor conceded however that since the application before me was solely with regard to a determination relative to physiotherapy whatever the correctness or otherwise to his submission as to the availability of massage therapy as a rehabilitation service, the availability or otherwise of reimbursement for massage therapy was simply not before the Tribunal. I cannot make any determination and should pay no heed to it except insofar as the pattern of massage therapy can shed light on the necessity or otherwise for physiotherapy services.

24 Ms McLeod said that there is a period of over six months from the 23rd of December 2002 until the 11th of July 2003 when this applicant received no physiotherapy at all. In fact she received a substantial number of sessions of massage therapy but that she says, is beside the point. How can it be said that this applicant requires weekly physiotherapy services when she does without them for so extended a period? If one takes the period from June 2002 to June 2003 one finds only five physiotherapy sessions properly so called. Again, says Ms McLeod an indicator of a lack of necessity for physiotherapy services. Further, she says that with regard to complaints of lumbar back pain, there is a lack of objective evidence as to this. There are no particular low back disorders identified and Mr O'Loughlin, who it seems has treated Ms Edwards for orthopaedic disorders ever since her 1989 transport accident is not treating the low back and has not been asked to carry tests or provide any treatment.

25 In reply Counsel for the applicant, Mr O'Connor has laid stress on a number of statements by the practitioners in favour of weekly therapy. For instance, the statement in the letter of Mr O'Loughlin dated the 19th of March 2002 and the statement made by Ms French to similar effect. Ms McLeod has stressed the fact that both according to Ms French and according to Ms Edwards herself, Ms Edwards used the physiotherapy services at her discretion, not as part of some program which has been benchmarked by the therapist. She invites me to conclude, as I would understand it, that the therapist and patient have in this regard offended the principles of enunciated by Harper J in Berger's case.

26 What then is the appropriate determination to make in light of the requirements of the statute to which I have already made reference? First, I should note with regard to Harper J's judgment in Berger's case, no doubt some of what His Honour said constitutes statements of legal principle. Much however represents findings of fact based upon the evidence which was before him. Hence, it cannot bind me in the determination which I must make and in treating these statements as being of persuasive force I must take care because the applicant through her Counsel has not had the opportunity to cross-examine the witnesses whose evidence His Honour heard and accepted in stating the proposition which I have quoted. I venture to think that it goes rather too far to suggest as Ms McLeod did, that it is simply improper to consider physiotherapy on an `as needed basis'. A physician can prescribe analgesics to a patient to be used `as needed' and I am not persuaded that a physiotherapist is acting improperly if he or she agrees to treat a patient on an `as needed basis'. I accept what Mr O'Loughlin said that physiotherapy is a modality well suited to the remediation of disorders of the back.

27 Having said so much, I believe that there is an almost total lack of evidence which would justify the continuation of weekly physiotherapy services for this applicant. First, there is the degree to which she has been able to go without these services in favour of massage services. These decisions were as both Ms Edwards and Ms French conceded, decisions made by the applicant. There seems to be an undertone in some of what His Honour Harper J said and what Deputy President Davis said and what Ms McLeod submitted that a determination or a decision as to what is necessary for an individual, made by an individual himself or herself is for that reason alone to be treated as suspect. I reject any such approach. There are no doubt very numerous cases where patients particularly with soft tissue trauma have become dependent on inappropriate therapies and have overused those therapies to the damage of themselves and the wider community which has been called upon to pay for them. I am not satisfied however that this applicant is to be seen in that light.

28 Her suggestion is that her soft tissue back problem arose from the asymmetrical gait which she now has. This is the view put by Ms French. This is plausible to my mind.

29 Mr O'Loughlin has not been treating for her low back problems. Low back soft tissue problems are notoriously difficult to treat. A slogan from the Victorian WorkCover Authority of a few years ago tells us that `if someone suggests you have back surgery get a second opinion'. It is not entirely surprising therefore that an orthopaedic surgeon might be regarded as having little to offer with regard to a problem such as this. Mr O'Loughlin said that physiotherapy was an appropriate modality for this kind of pain.

30 I believe that it is appropriate that this applicant should have available to her some physiotherapy services to cope with the flare-ups of low back pain which she says she suffers from. In addition, with regard to the need to maintain strength in her quadriceps muscles, there is some support to the view that whilst regular or frequent physiotherapy is inappropriate, physiotherapy services occasionally may be appropriate for supervision purposes. For these two reasons I believe that some physiotherapy services are reasonable medical services for the purposes of Section 60(1). The very extensive number of physiotherapy services which this applicant has received already might be thought to be a ground for saying enough, that if physiotherapy were going to do any good, it would have achieved a result by now. That is a persuasive argument. However, my experience in this Tribunal and in the Administrative Appeals Tribunal, General List before it, indicates that authorities such as the Victorian WorkCover Authority and the Transport Accident Commission have for a number of years, at least going back to 1997, been vigilant to constrain the indefinite use of physiotherapy as a treatment modality. Therefore, the fact that this applicant has been given so many services already indicates to my mind a likely conclusion that those involved in the adjudication can be regarded as being prepared, at least until last year to treat this applicant as somewhat unusual and that fortifies me in the view which I take.

31 What I have said already indicates that the demand for the perseverance of weekly physiotherapy sessions is far from reasonable. In my view an appropriate course is to allow this applicant a maximum of 20 physiotherapy services in any one calendar year to be used at Ms Edwards' discretion for the purpose of alleviating flare-ups of low back pain. With regard to the period May 2002 to 31 December 2002 we see according to the evidence that has been placed before me that some five physiotherapy services were undertaken. In my view that is reasonable for that period. Accordingly I will set aside the Commission's determination of 29 May and replace it with a determination to the effect that I have just announced.

32 I have given my reasons for setting aside the Commission's determination as to this applicant's entitlement to physiotherapy services and substituting a determination limiting the applicant to some 20 physiotherapy services per calendar year.

33 Ms McLeod on behalf of the respondent commission has shown me an offer of settlement dated the 22nd of April 2003 which she says was served in accordance with Section 112 of the Victorian Civil and Administrative Tribunal Act 1998 and Schedule 1 Clause 93 of that Act.

34 The offer with regard to the matters which went to a determination would have had the Commission fund fortnightly physiotherapy sessions for two years with the respondent to consider accepting funding beyond this date if it is for rehabilitation purposes following a hemi-arthroplasty of the left knee.

35 In the circumstances Ms McLeod submits that the applicant has failed to better the offer of settlement and therefore in her submissions the proper course is to give the applicant her costs of the proceeding until 22nd April 2003 or I infer, perhaps, until the expiry of the offer, some 14 days later and thereafter to award the costs of today's trial and the preparation thereof to the Commission.

36 Mr O'Connor on behalf of the applicant submits that in the circumstances there should be no such costs order. He said that the applicant has bettered the offer. The determination which I made was not in its terms restricted to two years and did not have the limitation that thereafter physiotherapy would only be considered for rehabilitation purposes following a hemi-arthroplasty of the left knee, a procedure which as the material which I recited in my principal reasons, the applicant and her surgical adviser desires to postpone for as long as possible and perhaps never undertake at all.

37 In reply Ms McLeod submits that any determination that I make today is not unlimited in time and is itself subject to being revisited in the future. It cannot be said therefore, that my determination is necessarily any more advantageous in all the circumstances. The question of whether this offer is a less advantageous outcome than the one which has ultimately flowed from my hearing and determining the matter is difficult of resolution. The offer at least for two years is of some 26 physiotherapy services per annum rather than the 20 which my determination is, is more favourable than my determination. On the other hand it contains a limitation in time which my determination does not. Allowing for the consideration which Ms McLeod rightly raises, namely that the determination today is not of unlimited duration and is subject to revisiting in the future, the question as to whether this offer or my determination is ultimately more advantageous is problematic. Nevertheless, in light of the evidence which I heard in the proceeding I think that this offer of settlement is one which should have been given very serious consideration

38 There was an element of the `Kamikaze' in going on after it was received. However, I am not I not satisfied that this offer has not been bettered. The situation therefore remains uncertain. Independently of the offer of settlement provisions in the statute, that is the Victorian Civil and Administrative Tribunal Act, Section 79 of the Transport Accident Act gives me a wide discretion as to the award of costs. In the uncertain circumstances which I have described I believe an appropriate response is to give the applicant her costs on County Court Scale `A' up to the period 14 days after the offer of settlement. Thereafter in my view, there should be no order as to costs.