After Comcare funded treatment including 1,350 massages over 34 years to treat a worker’s arm and shoulder pain, the AAT determined the treatment was not reasonable and Comcare was no longer liable to pay.
The background
The Applicant began experiencing pain in her left arm and shoulder girdle in May 1984. At the time, she was an employee of the Commonwealth and made a claim for compensation for repetitive strain injury. The Respondent accepted liability for ‘repetition strain injury of the Writer’s Cramp Style’ which was later changed to ‘nerve root and plexus disorder’ (the accepted condition).
The Tribunal made a consent decision in 2010 accepting liability for a 90-minute massage per week with a review to be conducted after 12 months. Following the decision in 2010, the Applicant continued to obtain massage treatment paid for by the Respondent, generally on a weekly basis, until 20 February 2018.
Since 11 May 1984, the Applicant:
- received approximately 1,350 massages at a cost of almost $110,000;
- had 22 acupuncture sessions paid for by the Respondent; and
- renewed her gym membership, which was paid for by the Respondent.
By a determination dated 20 February 2018, the Respondent declined liability to pay for the treatment because it considered that the treatment did not meet the principles of the Clinical Framework for the Delivery of Health Services.
On 27 March 2018, the Applicant requested a reconsideration of the determination and by a review dated 20 April 2018, the Respondent affirmed the original determination. On 10 May 2018, the Applicant lodged an application for review of the Decision Under Review.
The issue
The issues to be determined by the Tribunal were (1) whether the Applicant was suffering from the accepted condition on 20 February 2018 (2) if so, whether she required treatment for the accepted condition (3) whether the Applicant was suffering from a secondary effect of the accepted condition on 20 February 2018 (4) if so, whether she required treatment for the secondary condition and (5) whether the treatment was a medical treatment received by the Applicant for the secondary condition and whether it was reasonable for the Applicant to obtain in the circumstances.
The decision
The Tribunal accepted that the Applicant was suffering from an accepted condition as at 16 September 1984. The Tribunal noted the medical evidence which referenced a significant pain disorder but did not seem to be diagnosing the Applicant as suffering from the accepted condition as at 20 February 2018, and in particular, the medical evidence of Dr du Plessis, neurologist, to the effect that any direct symptoms of the accepted condition would have resolved long before 2018, and probably within a reasonably short time after the Applicant ceased work in 1985. Accordingly, the Tribunal found that the Applicant was not suffering from the accepted condition as at 20 February 2018, and it followed that the Applicant did not require medical treatment for the condition at that time.
In terms of the secondary condition, the Tribunal noted a complicating factor, being a fall suffered by the Applicant down concrete steps in 2016 which necessitated several weeks of hospitalisation and rehabilitation thereafter. However, the Tribunal found no evidence to suggest that the fall had contributed to the secondary condition.
The Tribunal noted that there would need to be a causal link between the accepted condition and the secondary condition in order for the Tribunal to have jurisdiction to consider the secondary condition. In that regard, the Tribunal said at [115]:
I considered the Applicant to be a generally reliable witness and accept that as at 20 February 2018, she was suffering pain in the shoulder and arm region. I’m still uncertain as to what condition Drs Sharman and Francis opine the Applicant now suffers, but as noted at [108], it is either a pain disorder or neural pain sensitisation. For the purpose of this decision it could appropriately be described as a pain disorder. Considering the evidence set out below and in the absence of evidence to suggest a cause other than the original accepted condition, I find that the pain disorder (‘the secondary condition’) was causally linked to the accepted condition and therefore the Applicant's employment materially contributed to her condition as at 20 February 2018.
In considering whether the treatment was reasonable in all the circumstances, the Tribunal referred to several passages taken from the decision of Aylett and Comcare (2019) AATA 1474 which considered the relevant principles regarding what can be considered reasonable care. The Tribunal said this extends to treatment that results in temporary relief. The Tribunal also considered the principles found in the Clinical Framework for the Delivery of Health Services, which details five principles as follows:
- Measure and demonstrate the effectiveness of treatment.
- Adopt a biopsychosocial approach.
- Empower the injured person to manage the injury.
- Implement goals focused on optimising function, participation and return to work.
- Base treatment on the best available research evidence.
The Tribunal found that the Applicant’s evidence alluded to the massages and acupuncture reducing her pain levels for a short period of time, before the pain levels then returned to the previous level. The treatment therefore caused no change to the underlying level of pain, despite her undergoing these treatments since 1984. Therefore, there was no evidence of any permanent effect of improvement in the condition. The medical evidence also showed no benefit of engaging in these treatments rather than taking simple analgesic medication and anti-inflammatory agents.
The Tribunal noted that the Applicant had not in fact trialled any such medication, citing an aversion to doing so. In that regard, the Tribunal said at [124]: 'But I do not consider that sufficient reason not to undertake such a trial, rather than persisting with her treatment regime which has resulted in no appreciable change for approximately 34 years.'
There was also no evidence of the Applicant’s pain escalating absent the treatment, but rather, the treatment just reduced her pain for a relevantly short period of time before returning to its usual level.
In light of the Applicant’s evidence, and the medical evidence regarding the efficacy of the treatment, the Tribunal found at [127] that, inter alia, the treatment provided limited benefit despite costing a substantial amount of money and had not caused any change in the Applicant’s condition in over 30 years. The Tribunal also said there was little in the treatments undertaken that was consistent with the principles of the Clinical Framework.
Accordingly, the Tribunal found that the treatment was not reasonable in all the circumstances and the decision under review was affirmed.
Implications for you
This is an important decision regarding the reasonableness of treatment, and the fact that the reasonableness of treatment can change. The decision helpfully discusses the factors that will be relevant to determining the reasonableness of treatment, especially where it only provides temporary pain relief.
Wells and Comcare (Compensation) [2022] AATA 1911 (22 June 2022)
