(1) The decision of the respondent of 29th July 2004 is set aside, and in lieu thereof it is determined that the respondent pay the reasonable costs of a maximum of eighteen chiropractic standard consultations to be used at the applicant's discretion and that thereafter the funding of such chiropractic treatment cease.

(2) Costs reserved.

Mr P Halley of Counsel, instructed by Kenyons Lawyers.

Ms A Magee of Counsel, instructed by TAC Law Pty Ltd

1 This matter comes before me by way of an application for review by Jim Theodoulis ("Theodoulis") of a decision by the Transport Accident Commission ("the TAC"). That decision relates to the operation of s.60 of the Transport Accident Act 1986 ("the Act"). The decision which is the subject of the application for review is to the effect that the TAC is unable to pay for any further hands-on physical therapy such as chiropractic, physiotherapy and osteopathic treatment after 29th July 2004. Theodoulis disputes this and claims that it is fair and reasonable that there be ongoing funding of hands-on physical therapy.

2 Mr P Halley of counsel appeared on behalf of Theodoulis. Ms A Magee of counsel appeared on behalf of the TAC. Evidence was adduced from Theodoulis and from his treating chiropractor, Dr Sylvia Kondekas. A large number of medical reports was tendered, and each counsel made helpful submissions.

3 The TAC conducted this particular case in a manner which seems to me to have been a waste of Tribunal time. It would be seen by many to represent the height of financial absurdity. I hasten to add that this is no criticism of Ms Magee, who, on behalf of the TAC, conducted the matter in a very proper fashion and efficiently carried out the task which she was briefed to do. The financial absurdity to which I refer is that the case was conducted at all.

4 It involves the chiropractic treatment of Theodoulis by Dr Kondekas. As shall be discussed, he has had a very large amount of such treatment, and it is fully understandable that the TAC commenced to entertain suspicions as to whether the public purse should be funding apparently long term chiropractic treatment. No one should be critical of the TAC for endeavouring to protect public monies in a situation where it believes there is good reason to investigate expenses and to take appropriate steps. In the present case, I am not criticising it for seeking expert opinion in relation to Theodoulis' treatment or for then deciding to terminate funding of that treatment - a decision open to it on the basis of the opinion obtained. However, this case then took on a different twist.

5 On 2nd December 2004 - in excess of two months before the hearing dates of 14th and 15th February 2005, which had already been fixed - Theodoulis, through his solicitors, made an open offer to resolve the dispute. That open offer was, quite properly, put before me. Theodoulis offered to agree to the cessation of funding of further hands-on physical therapy if the TAC would pay for a further ten chiropractic standard consultations. In addition, Theodoulis would settle the matter if the TAC paid his costs and disbursements on the lowest County Court Scale, namely Scale "A". A letter addressed to the solicitor for the TAC and accompanying such open offer of settlement was also placed before me. In that letter, the solicitors for Theodoulis maintained that his entitlement to ongoing chiropractic treatment was fair and reasonable, but indicated that he was prepared to resolve the matter on the basis referred to above in order to avoid the significant costs involved in proceeding to hearing. In other words, at that time, Theodoulis was prepared to end any claim for ongoing funding of chiropractic and like expenses save for ten more treatments to be used at his discretion. I note from material put in evidence before me that, as at 8th July 2004, the rate paid for a standard consultation was $33.10, having been adjusted to that rate in what appears to be an annual adjustment as at 1st July. Accordingly, what Theodoulis was seeking in order to settle his claim and finalise any entitlement that he might have to funding of treatment was $331.00. He was also seeking costs to that point in time, which was long before the hearing and the preparation for the hearing, on the lowest County Court Scale.

6 The TAC did not accept that offer. Instead, it proceeded to hearing. A voluminous trial book was prepared. Expert witnesses were put on alert. Experienced counsel was briefed. We had a hearing which was conducted over two sitting days, which hearing involved the attendance of counsel and an instructing solicitor. Of course, Theodoulis, for his part, had no option but to respond in like fashion, with all the associated costs and expenses, to say nothing of the time involved. In addition, two days of the time of this Tribunal, and the expenses associated with that, were involved.

7 I am no costs expert. However, it seems to me that the TAC was prepared to spend or risk something in the order of $10,000.00 to $15,000.00 in costs and expenses (leaving to one side the cost of any further chiropractic treatment which it might be ordered to pay) rather than pay $331.00 and what would have been, comparatively, minimal costs. Further, as I have stated, the acceptance of such open offer was in no way going to open the way for further claims by Theodoulis. It was not the thin edge of the wedge. Rather, it was the opposite. It was an opportunity to finalise his entitlements. Nor does the matter raise any great points of legal principle possessing the capacity to impact upon other cases. This is a simple factual matter concerning Theodoulis' treatment which could have been resolved simply and cheaply and without creating any damaging or expensive precedent. Theodoulis was prepared to do this. The TAC was not. Instead, it has caused probably $10,000.00 to $15,000.00 to be expended in order to avoid paying $331.00 and minimal costs. I can only repeat that it would seem to many, myself included, to be the height of financial absurdity.

8 These observations have no bearing on the outcome of the case which must be assessed on its merits, and I make them in the hope that similar such cases can be disposed of in a sensible fashion in the future.

FACTUAL BACKGROUND AND PRESENTATION OF THE CASE

9 Theodoulis is a 43 year old man who received injuries in a motor vehicle accident on 29 December 1991 ("the accident"). In the accident he received injuries to the head and neck, and to the right knee. He also received some cuts and abrasions. Symptoms in the lumbar spine also emerged. Thereafter he underwent an arthroscopy of the right knee, this being performed by Mr Macintosh in June, 1994. The surgery did not result in complete resolution of the symptoms in the right knee. In addition, he continued to suffer from head and neck pains.

10 Whilst it is difficult to ascertain the precise date when Theodoulis commenced to undergo chiropractic treatment from Dr Kondekas or others at her clinic; it would appear that this may have been in 1997. The number of treatments thereafter received by him would appear to be in the order of at least four hundred. Again, as far as can be ascertained - and, as shall be stated, the evidence of Dr Kondekas was generally most unsatisfactory - the bulk of this chiropractic treatment related to problems with the cervical spine, with some treatment for problems with the lumbar spine. It would appear that he has also received some chiropractic treatment in relation to his knee. My overall impression is that the bulk of the chiropractic treatment which he has received is related to his spine.

11 Theodoulis has effectively missed no time from work. His employment is that of a linesman with Yarra Trams, and this involves him in both the lifting of some heavy objects and, more frequently, working overhead repairing and maintaining overhead tramlines. He regards the chiropractic treatment which he has received and continues to receive as being essential in enabling him to continue with his work, and in contributing to his very good work record whereby he has missed, effectively, no time for many years as a result of the relevant injuries.

12 It is also apparent that Theodoulis at one time suffered from a significant psychiatric illness with suicidal ideation. The major events in this regard appear to have occurred in 1995, and I do not treat them as relevant to the present application. I do not regard the problems for which Theodoulis receives chiropractic treatment as having a psychiatric or psychological origin. Whilst he may have had psychiatric problems ten years ago, his work record, combined with his presentation, in addition to the medical opinion which I accept, satisfy me that there is little, if anything, that is functional in relation to his symptoms, and that there is an organic basis for the relevant treatment which he has received and continues to receive.

13 In summary, I accept Theodoulis as a witness of truth. He is a man with an excellent work record. It could scarcely be said that he maximises his symptoms. I note that Dr Richard Stark, Neurologist, who has examined Theodoulis several times over the years, refers to him as being co-operative, trying well during the examination, and presenting his history in a straightforward, unexaggerated fashion. This coincides with the impression which I formed. I accept his evidence in all relevant regards.

14 Turning from my impressions of Theodoulis to the chiropractic treatment received by him, I am satisfied that it has assisted in enabling him to continue with his quite arduous employment without missing any time because of symptoms. I also accept his evidence that the need for such treatment is steadily decreasing and that, over the last twelve months, there has been improvement in his condition, an improvement which he estimates to be in the order of 50 percent. In his most recent report, Dr Stark, who first saw Theodoulis in 1995, refers to Theodoulis as having ongoing symptoms in the neck and back relating to jolting soft tissue injuries to these regions. Dr Stark relates these symptoms back to the accident. Dr Stark did not doubt the history given to him by Theodoulis to the following effect:-

"He is clearly convinced that chiropractic treatment provides symptomatic relief for him and believes this form of treatment is more affective (sic) for him than medication."

"... the measure of effectiveness (of ongoing chiropractic treatment) clearly relates to the response of symptoms to the treatment, and this is something that only the patient can accurately report. I have no doubt that this man genuinely believes that his symptoms are significantly improved by ongoing chiropractic treatment and on that basis it would seem to be a reasonable form of symptomatic treatment."

16 The views of Dr Stark concerning the genuineness of the belief of Theodoulis that his symptoms are significantly improved by chiropractic treatment are views which I accept. I prefer his opinion to those obtained on behalf of the TAC.

17 It is also indicative of the improvement which Theodoulis has enjoyed, particularly in recent times, that he is prepared to bring this regime of treatment to an end. However, by means of his open offer he wishes to keep, in reserve, a limited number of treatments available in the event of marked symptomatic deterioration, and so as to enable him to continue working without loss of time.

18 Evidence was also given by the chiropractor, Dr Kondekas. I was not particularly impressed with her as a witness. She did not strike me as co-operative in the manner in which she gave evidence. For someone who has seen this particular patient so many times, her record keeping was grossly inadequate. That is not to say that her chiropractic treatment has not been of benefit to Theodoulis. However, her whole attitude struck me as being that of one with inadequate records defending herself against an accusation, either expressed or strongly implied, of over-servicing. Accordingly, frequently her answers were scarcely responsive.

19 If the TAC has reason to believe that this particular chiropractor has engaged in over-servicing, there are other and more appropriate avenues by which this can be explored or prosecuted. To select the case of a genuine individual who is prepared to cease treatment on terms which involve very little money, and then relentlessly contest his claim, is an expensive and inappropriate method of tackling alleged over-servicing, if that should be the driving force behind this case.

20 In summary, whilst I was not impressed with Dr Kondekas as a witness, the issue of whether or not she has engaged in over-servicing should not be confused with the issue to be determined in this particular case, namely whether the TAC is liable to pay the reasonable costs of on-going chiropractic treatment for Theodoulis.

21 In relation to the areas of the body which have been the subject of treatment, there was some argument as to when Theodoulis in fact developed low back pain and whether this was related to the accident. I am satisfied that his back pain is long-standing and is related to the accident. I note that as long ago as 1997 Dr Kouzmin took a history of Theodoulis developing persistent low back pain, and Mr Weaver, who also examined at approximately that time, took a history of back complaints. I note that Dr Kouzmin referred to the back pain becoming troublesome soon after the motor vehicle accident and stated that this could be assumed to arise out of musculo-ligamentous strain. Despite a history given to Mr Henry Byrne in June 2003, which could indicate a more recent onset of back pain, an examination of the older medical reports reveals that back pain has in fact been long-standing. I accept that low back complaints are related to the subject accident, as is the treatment received in respect of them.

22 Argument, based upon the interpretation of the Act and upon decided cases, was advanced. Ms Magee referred me to the decision of Harper J in Berger and Ors v Physiotherapist Registration Board of Victoria (delivered 14th April 1997), and to both the decision at first instance in Russell v Transport Accident Commission (delivered 27th August 2003) and the decision by Harper J relating to the appeal in this matter - that is, Russell v Transport Accident Commission [2004] VSC 442. In relation to the decision in Berger, it is to be remembered that that case involved the Physiotherapists Act 1978 and accusations of over-servicing and unprofessional conduct in breach of the provisions of that Act. The observations of Harper J in relation to the maintenance of proper records, and the responsibility of the physiotherapist to treat the patient only insofar as physiotherapy can be shown to be of benefit, must be viewed in that context. His observations concerning demonstrable, measurable effects shown to benefit the patient must also be so viewed, as must his general remarks concerning physiotherapy being a profession that must base its treatment of its patients on objective and, insofar as possible, scientific considerations.

23 In the decision of Russell at first instance, Deputy President Davis, as she then was, referred to the decision in Berger as being helpful and adopted the approach used in it in considering whether, pursuant to s.60 of the Act, there should be funding for ongoing osteopathic treatment and psychological counselling.

24 Her decision was appealed. The observations of Harper J in paragraphs 10-13 of his judgment on appeal are worth bearing in mind. They include the following:-

"In assessing what expenditure is reasonable, one must therefore consider the necessity of the service upon which the expenditure is proposed to be affected. In this context the word "necessity" is, I think, of some importance. The word is somewhat flexible in its scope. It does not, as I apprehend it, include only services which are vital for the continued reasonable existence of the victim as a functioning member of the community. What is necessary would include treatment that is of a much lower urgency than that. On the other hand, when one reaches the other point of the scale, one must presumably exclude as not being necessary treatment which is of merely temporary palliative effect, especially where that effect is not measurable."

"In any event, it is not within the jurisdiction of the court to deal with the merits of the Tribunal's finding or findings. The only question is whether those findings were made in accordance with law".

"It was open to the Tribunal, in my opinion, to find that the continued expenditure by the Commission on the treatment rendered to Mr Russell by the osteopath and the psychologist was not reasonable within the meaning of s.60 ... That being a conclusion which was open as a matter of law, there is no basis upon which this court can interfere."

25 What can be distilled from the above is that, in each case, it is a question for the Tribunal as to whether treatment is of a merely temporary palliative effect, especially with no measurable benefit, or whether there is some benefit, although the treatment clearly does not have to be "vital for the continued reasonable existence of the victim as a functioning member of the community". I also note that, in paragraph 11, when referring to the psychological treatment, Harper J stated that:-

"It may well be in appropriate circumstances that the prevention of deterioration is entirely appropriate. Here, however, the treatment seems to be directed to no more than a temporary holding pattern."

26 There is no suggestion that this approach should be confined only to psychological counselling.

27 In other words, whilst, in accordance with the decision in Berger, grossly inadequate record keeping can be of relevance and assistance in dealing with alleged over-servicing, it is not the key factor to be considered in relation to s.60 of the Act. Properly kept records may well have provided useful evidence, but their absence does not mean that there is no evidence. The task of the Tribunal remains that of determining, on the basis of the material before it, whether the particular treatment is a reasonable cost within the meaning of the Act. To adopt the wording used by Harper J in Russell, the question to be asked by the Tribunal is whether the continued funding of the services is reasonable, having regard to their necessity in the appropriate treatment of the victim of the accident.

28 Mr Halley, on behalf of Theodoulis, referred me to three decisions of this Tribunal. These are Keler v Transport Accident Commission [2002] VCAT 445, Edwards v Transport Accident Commission [2003] VCAT 2003 and Hogarty v Transport Accident Commission (delivered 8th September 2004). In particular, Mr Halley referred me to the observations of Deputy President Macnamara in paragraph 26 of Edwards. The attention of Deputy President Macnamara had been directed towards the decision in Berger and the decision in Russell at first instance. In paragraph 26, Deputy President Macnamara stated as follows:-

"... 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 ... I venture to think that it goes rather too far to suggest ... that it is simply improper to consider physiotherapy on an "as needed" basis."

29 I note also, that in paragraph 27, Deputy President McNamara stated as follows:-

"There seems to be an undertone ... that a determination or 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."

30 Further, in determining the matter, Deputy President Macnamara was of the view that physiotherapy should not continue indefinitely, but allowed a maximum of a further twenty services in any one calendar year:-

"... to be used at Ms Edwards' discretion for the purpose of alleviating flare-ups of low back pain."

31 This reflected an earlier observation of his in paragraph 30 that the applicant should have available to her some physiotherapy services to cope with the flare-ups of low back pain.

32 I accept that Theodoulis has obtained a real benefit from the chiropractic treatment which he has received. Whilst he has certainly received what could be described as an enormous amount of treatment, I accept that, particularly in the last twelve months, there has been a marked improvement in his condition and that this is at least in part the result of the chiropractic treatment which he has received. I accept his evidence that, at times when such treatment was not available for whatever reason, there was a deterioration in his condition. He has estimated a 50 percent improvement in his condition over the last twelve months, and I accept that. He has also acknowledged that the time is rapidly approaching when he should discontinue such treatment, and it may well be that a more determined effort at self management may be required. However, I regard as being perfectly reasonable his request for funding of a limited number of treatments in the future, such treatments designed to assist in the event of the deterioration of symptoms or, as described by Deputy President Macnamara in Edwards, "flare-ups". Bearing in mind his determination to remain in his present demanding occupation, it also seems to me that such limited treatment, used at his discretion, may well maintain him as what Harper J described in Russell as "a functioning member of the community". Of course, Harper J basically stated that the test was one of a much lower standard than that.

33 It seems to me that the number of future chiropractic treatments for which funding would be reasonable is eighteen, to be used at the discretion of Theodoulis. Obviously it is difficult to arrive at a precise figure, given that the ongoing rate of improvement and the number of "flare-ups" are not capable of scientific calculation. There is no magic in the figure "eighteen", but it represents one treatment per month for the next year with a further allowance of half that number again for occasions when more intense treatment may be required. It may be that, upon occasions, some episodes of treatment do no more than prevent deterioration. However, as stated by Harper J, there can be situations where this is appropriate. Nevertheless, my primary reason for arriving at the conclusion which I have is that I accept the evidence of Theodoulis that the treatment is of a real benefit to him, assisting in the alleviation of pain, increasing his mobility, and enabling him to continue, without interruption, in the workforce.

34 The application is successful. The decision of the respondent of 29th July 2004 is set aside, and in lieu thereof it is determined that the respondent pay the reasonable costs of a maximum of eighteen chiropractic standard consultations to be used at the applicant's discretion and that thereafter the funding of such chiropractic treatment cease.

35 I shall now hear the parties on the question of costs.