Traffic Law - Statutory compensation in respect of motor vehicle accidents - Tasmania - Scheduled benefits - Treatment expenses - Whether reasonably incurred - Osteopathic and massage treatment.

Motor Accident (Liabilities and Compensation) Regulations 2000 (Tas), Sch1, Pt2, cl 1(1).

Judgment ID Number: [2005] TASSC 47

FELICITAS WITHOPF v MOTOR ACCIDENTS INSURANCE BOARD

1 This is an appeal pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973, s28(6), from a decision of the Motor Accidents Compensation Tribunal. The Tribunal was constituted by a magistrate. He affirmed a decision of the respondent ("the Board") to cease payments for osteopathy and massage expenses incurred by the appellant. The appellant contends that the Tribunal gave inadequate reasons for its decision, that it erred in its decision-making in various respects, and that the only reasonable decision would have been one in her favour.

2 The appellant was injured in a motor vehicle accident in January 2001. It is common ground that, as a result, she began to suffer pain, and that that pain still persisted as at the time of the Tribunal hearing. She described it as "a dull pain that's under my shoulder blade radiating up to the neck". In order to relieve her symptoms, she commenced receiving treatment from an osteopath in 2002. That treatment continued on a monthly basis, and was still continuing at the time of the Tribunal hearing in November 2004, except for a period of about 3½ months in late 2004 when the appellant went on a trip to Germany. In addition to the treatment by the osteopath, the appellant commenced massage treatment in March 2003. Initially she had fortnightly massages, but after a short while she began having monthly massages. She continued to have monthly massages for most of 2003, and throughout 2004, except during the period in Germany, when unqualified friends massaged her at times. It was in January 2004 that the Board decided to cease paying for her osteopathic and massage treatment.

3 The Board's obligation to pay scheduled benefits is imposed by the Act, s23, and by the Motor Accidents (Liabilities and Compensation) Regulations 2000 ("the regulations"), reg8 and Sch1, Pt2, cl 1. The relevant provisions of that clause read as follows:

"(1) Subject to this Part, where a person suffers personal injury resulting directly from a motor accident, all the expenses reasonably incurred by the person or on his or her behalf for the provision of the treatment required by him or her within the Commonwealth as a result of the injury are payable as medical benefits.

(4) In relation to a person who has suffered personal injury, the treatment referred to in this clause the following:

(e) therapeutic treatment by, or under the supervision of, a registered --

4 Before the Tribunal, the appellant contended that her continuing expenditure on osteopathic treatment and massages was "reasonably incurred" within the meaning of cl 1(1). The Board contended that it was not. The evidence before the Tribunal came from three witnesses: the appellant; Dr Ernst, a specialist in musculoskeletal medicine and occupational medicine who was called to give evidence for her; and Dr Muirden, a consultant rheumatologist who was called to give evidence for the Board. Reports by the two doctors were tendered and relied on before the Tribunal. Dr Ernst was of the opinion that the expenses in question were reasonably incurred. Dr Muirden was of the opinion that they were not. Otherwise, however, there was little significant difference of opinion between the two expert witnesses. It was common ground that the appellant's pain symptoms were genuine, that they resulted from the 2001 accident, that the osteopathic and massage treatment obtained by her provided her with temporary relief from her symptoms, and that such treatment could have no effect on the underlying causes of her pain. Both doctors considered that new treatment avenues needed to be explored for the purpose of treating the underlying causes of her pain, ie for the purpose of trying to cure her. There was undisputed evidence from the appellant that she had tried using a TENS machine, but did not find it effective; that she had tried taking a tricyclic anti-depressant, but obtained no pain relief from it, felt really drowsy, and did not function afterwards; that she tried non-steroidal anti-inflammatories, but ceased them because of gastrointestinal upsets and ulcers; that she had been doing regular exercises; that she had attended yoga classes from January to May in 2004; and that she had bought herself an inversion machine, the use of which gave her quite a bit of relief.

5 Dr Ernst's views as to ongoing massage and osteopathic treatment were stated by him in a report as follows:

"Ms Withopf has significant symptoms and has a choice to manage these symptoms either with lots of tablets or alternative options such as massages and osteopathic treatments. The frequency of massages and osteopathic treatment at the time when such treatment was denied were probably less expensive than all the possible drug regimes which may not only lead to side effects but perhaps even less effective pain relief"

6 Under cross-examination, Dr Ernst said the following:

"... I think as far as symptomatic treatment is concerned for Mrs Withopf, the osteopathy once a month has worked, and the treatments of massages once a week has worked. Now when I look at the, if, I think I'd be concerned if, if she had osteopathy twice a week. And there is a number of reasons why it would concern me, because I don't think it's actually good to have it that often and regularly, but if it is only once a month, I would have thought that's reasonable."

"... I think a patient needs to know that, this is not to fix your problem. This is to just help you to manage your life, stay at work, be able to do your home work and house work and what ever you do, and enjoy a reasonable quality of life. And that's why I weigh up, you know, one, one session of osteopathy a month, from a societal perspective I guess, is not unreasonable. To, to, if, you know, provided it does add value. And I don't question, I think Mrs Withopf came across to me as a very genuine patient without any agendas. I, often there are other, other issues in the social area which have to be addressed, but I didn't feel that the answers, answers to help would come from that area. And so I think, for me, I acknowledge that this treatment doesn't give her a fix, at the same time I acknowledge it does give her some help to get by on a week by week basis. Hopefully, she's not going to need it in a few years time, but that's all speculation."

8 In a report about the appellant dated 28 June 2003, Dr Muirden said the following:

"She has continued to receive treatment from an osteopath and also with massage but with only transient improvement. I consider that this treatment is inappropriate in the absence of a more definitive diagnosis."

9 In a report dated 26 December 2003, Dr Muirden said the following:

"I do not consider that osteopathic treatment is appropriate and, whilst massage therapy is soothing, there is no evidence that it affects the ultimate course of the condition."

10 He explained the basis for his view under cross-examination in the following passage:

"MR DOCKRAY: And if under stress, Ms Withopf feels increasing levels of anxiety and tension in her scapular region and in her neck, is not massage and osteopathy an appropriate means of relieving that tension?

DR MUIRDEN: The view that I have is this focuses of the person on the effects of the injury, and that amplification is, is further exaggerated. And I think that that's what, the attitude that I have is that this passive form of treatment in which the sufferer says to the therapist you fix me, if that can be changed to an active program in which the patient herself takes responsibility for, so that she is not continually thinking back to the injury, that is likely to be of considerable benefit."

11 His reasoning also appears from the following exchange between him and the learned magistrate:

"TRIBUNAL: Can I just ask a question here, so I understand things. What you seem to be saying Doctor is that massage or, or massage treatment simply reinforces the notion she has in her head, and to the extent to which it does is counterproductive to her moving on beyond where she is now, and dealing appropriately with her condition? Is that more or less it?

DR MUIRDEN: Yes, I don't think I could put it better than that. I think the ...

DR MUIRDEN: The manipulation of this aggrieved part I think aggravates the condition and leads to the patient developing a dependency rather than developing coping skills."

12 The Tribunal delivered written reasons for its determination. The last two paragraphs of those reasons read as follows:

"I prefer the opinion given by Dr Muirden that the cause of persistent pain is related to an element of depression in the context of a hypervigilant state whereby normal aches and pains are referred back to the injury and are magnified by this state of hypervigilance. Massage and osteotherapy will not treat the underlying problem, are wasteful and counter-productive to Mrs Withopf moving on from a passive role to an active one whereby she takes control and discards this dependency upon such treatments, her continued resort to them merely serving to reinforce such dependency.

I do not consider the costs of such treatment to be reasonably incurred given my findings. The appeal is dismissed."

13 It is clear that the Tribunal accepted the opinion and reasons of Dr Muirden. By implication, the opinion of Dr Ernst was rejected. The appellant contends that the Tribunal did not adequately state the reasons for its decision, in that the reasons for preferring the expert opinion evidence of Dr Muirden to that of Dr Ernst were not disclosed. I disagree. After studying the Tribunal's reasons, I think its reasoning is clear enough. The pathway to the conclusion that the expenditure in question was not reasonable began with a consideration by the learned magistrate of conflicting evidence from the two doctors as to whether the appellant still suffered from soft tissue damage. Dr Muirden said in his report of 26 December 2003 that the original accident had clearly caused soft tissue problems, but that any tissue damage would have resolved by the time of his report. In his oral evidence before the Tribunal, he adhered to the view that there was no continuing soft tissue damage. However, Dr Ernst took the view that, although x-rays and MRI scans showed no evidence of soft tissue damage, its continuing presence was possible. After reviewing the evidence of the two doctors as to the absence or possible continued presence of soft tissue damage, the learned magistrate said the following:

"I am not satisfied of the continued existence of soft tissue damage. Whilst absence of evidence is not evidence of absence, nonetheless the case for the presence of soft tissue injury after all this time seems to be flimsy and to rest more upon suspicion, than affirmation. It is tenuous and seems to be more speculative than informed."

Evidently the learned magistrate thought that there was no continuing soft tissue damage, and that it followed, as night follows day, that Dr Muirden's opinion as to the unreasonableness of continuing osteopathic and massage treatment was to be preferred to the opinion of Dr Ernst on that point.

14 The notice of appeal in this case sets out seven grounds of appeal, the first of which reads as follows:

"1 The Tribunal erred in concluding that an issue relevant to the determination of whether ongoing massage and osteopathy treatment was reasonable and necessary depended, to some unstated extent, on whether the Appellant's symptoms, which were accepted to be genuine, were the result of the continuing effects of a cervical soft tissue injury."

15 Before the Tribunal, the appellant did not contend that the continued existence of soft tissue damage was a fact, rather than a possibility. Dr Ernst's opinion that the expenditure in question was reasonable was not based upon a positive belief that soft tissue damage continued to exist. The only evidence suggesting that it might have continued to exist was the evidence that the appellant continued to suffer pain. The only evidence suggesting that it did not continue to exist was the evidence that a lot of time had passed since the accident. The evidence of the x-rays and MRI scans was inconclusive. The evidence of absence of soft tissue damage was about as flimsy as the evidence of its continued presence.

16 In considering whether he was satisfied of the continued existence of soft tissue damage, and in considering the strength of "the case for the presence of soft tissue injury after all this time", the learned magistrate seems to have given the issue as to the possible continued existence of soft tissue damage a false importance. The appellant's case was that no appropriate treatment for the underlying causes of her continuing pain had been identified; that the osteopathic and massage treatment gave her relief from her symptoms that enabled her to cope with them; that she did not have osteopathic treatment or massages too frequently; that the relevant expenditure was not excessive, having regard to the expenditure on medication sometimes incurred by patients with similar conditions; and that an appropriate specialist, Dr Ernst, considered the expenditure reasonable. Those were the principal facts and contentions relied upon by the appellant, and the learned magistrate should have considered each of them before arriving at a conclusion as to whether the expenditure was reasonably incurred. Dr Muirden held the opinion that the appellant was dependent upon her massage and osteopathic treatment, and that it was unreasonable for such treatment to continue, even though no appropriate treatment for the underlying causes of her pain had been commenced, or even identified. The learned magistrate should have carefully scrutinised Dr Muirden's opinions. Instead, having focussed on the question of the continued existence of soft tissue damage, the learned magistrate treated that question as the key to the resolution of the conflict between the two expert witnesses and of the parties' competing arguments. In taking that approach, I think his reasoning was flawed, and that he erred in his approach to the question he had to decide. Ground 1 is somewhat clumsily worded, but I think it must succeed.

17 It is common ground that this is an appeal by way of rehearing. Under s28(6), this Court may "confirm, vary or rescind" the determination of the Tribunal. In my view the power to vary a determination of the Tribunal includes a power to reverse the determination. I think such an interpretation facilitates one of the objects or purposes of s28, namely to bring finality to disputes between claimants and the Board. Mr Dockray, for the appellant, submitted that, in the event of the appeal succeeding, I should not remit the matter to the Tribunal, but should make a decision to the effect that the payment of osteopathy and massage expenses should continue. Mr Jones, for the Board, did not submit that I should remit the matter in the event of my upholding one or more grounds of appeal. I will therefore make my own decision on the merits. I do not think such a course is inappropriate, since the decision of the learned magistrate appears not to have been based to any degree on his assessment of the demeanour or level of confidence of any of the witnesses.

18 At common law, when an injured plaintiff is entitled to damages by way of compensation for the cost of medical treatment, the courts will award such damages as are reasonable. I think the use of the term "reasonably incurred" in the regulations results in the Board and the Tribunal being required to adopt the same criteria as are adopted by the courts in determining questions of reasonableness. It may be, though, that a claimant or appellant does not bear an onus of proof: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354.

19 This was a case where two doctors disagreed as to the appropriateness of future treatment, not for the purpose of curing the patient, but for the purpose of providing occasional relief from chronic symptoms. It is not unusual for two doctors to hold different views as to what future treatment is or is not appropriate for a patient. In that situation, it does not necessarily follow that the treatment favoured by one of those doctors must be unreasonable and the treatment favoured by the other doctor reasonable, even when they express their views in terms of reasonableness or unreasonableness. A patient can be in a situation where he or she faces two reasonable alternatives.

20 Dr Muirden did not suggest that the approach of Dr Ernst was idiosyncratic, heretical, or inconsistent with the thinking of the rest of the medical profession. In my view the reasoning of Dr Ernst was logical and therefore worthy of respect. I think this was a case in which it would have been reasonable for the appellant either to have continued the osteopathic and massage treatment, in accordance with the views of Dr Ernst, or to have abandoned it in the hope of some sort of future treatment directed at the underlying causes of her condition being more effective, in accordance with the views of Dr Muirden. It follows that, in my view, the incurring of the osteopathy and massage expenses by the appellant was reasonable, and continued to be reasonable at the time of the Board's determination in January 2004.

21 For these reasons I order that the appeal be allowed, and that the decision of the Tribunal be varied to a decision quashing the Board's determination of January 2004 that no further payments be made by way of scheduled benefits in respect of the appellant's osteopathic and massage treatment, and substituting a determination that the appellant has the right to be paid scheduled benefits in respect of such treatment until a determination is made to the contrary.