Excell and Comcare [2010] AATA 104 (12 February 2010)

Last Updated: 15 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 104

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/6087

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KATHERINE HEATHER EXCELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Ms A F Cunningham (Senior Member) Dr R J Walters RFD (Part-time Member)

Date 12 February 2010

Place Hobart

Decision

The decision under review is affirmed.

.[Sgd Ms A F Cunningham]
Senior Member

CATCHWORDS

WORKERS' COMPENSATION - whether massage therapy constitutes reasonable treatment for accepted condition of PTSD - history of massage therapy treatment over four years - no evidence of long term benefit - not appropriate long term treatment for psychiatric illnesses - self managed exercise program recommended in the circumstances as appropriate medical treatment - decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988, ss 4, 16

Compensation (Commonwealth Government Employees) Act 1997

Re Jorgensen and Commonwealth (1990) 23 ALD 321

Popovic and Comcare [2000] AATA 264; (2000) 64 ALD 171

Mikic v Comcare [2002] AATA 125

Re Kentish and Telstra Corporation Ltd [1999] AATA 661

Re Lovrinovic and Comcare [1998] AATA 1038

Comcare v Watson (1997) 22 AAR 516

Tiranti-Valenti and Comcare (1996) 45 ALD 478

Nolan and Comare [2009] AATA 680

REASONS FOR DECISION

12 February 2010

Ms A F Cunningham (Senior Member) Dr R J Walters RFD (Part-Time Member)

1. This application for review concerns a determination which was made on 8 August 2009 denying liability for massage treatment on the basis that it is not reasonable treatment for the compensable condition.
2. At the applicant, Katherine Excell's request, the compensable condition originally accepted on 13 July 1988 as "anxiety, depression" was changed to post traumatic stress disorder (PTSD) on 8 February 2005.
3. Comcare's decision to refuse the claim was based on a finding that massage treatment is not treatment that is directed towards treating the cause of the compensable psychological condition, but rather the symptoms and therefore does not constitute reasonable medical treatment for the purposes of section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
4. The issue for the Tribunal to determine is whether massage treatment is reasonable treatment for the applicant's accepted condition of PTSD.

BACKGROUND

5. Ms Excell made a claim for workers' compensation in respect of "stress" on 9 March 1988 whilst employed by the Commonwealth in the Department of Social
   Security. Liability was accepted and incapacity payments were made by Comcare on an ongoing basis from 15 June 1988. Ms Excell retired from the Commonwealth on invalidity grounds with effect from 21 April 1989 and is in receipt of a superannuation pension. Ms Excell continued to receive incapacity payments until 30 October 1992 when she was paid a lump sum by way of redemption.
6. In May 2005 Ms Excell made an application for a permanent impairment payment pursuant to section 24 of the Act. The claim was refused by Comcare which determination was affirmed on reconsideration. Ms Excell sought a review by the Administrative Appeals Tribunal (AAT) which found that the transitional provisions of the Act meant that the impairment was permanent prior to the Act's commencement and therefore no lump sum payment was payable under the former Compensation (Commonwealth Government Employees) Act 1997. The AAT's decision was affirmed on appeal to the Federal Court.
7. Massage therapy was first recommended by Dr Warwick Ashley who commenced treating Ms Excell on 30 June 1988. Dr Ashley wrote a report on 16 December 1988 recommending that Ms Excell be retired on health grounds. Although Dr Ashley supported a trial of physical massage therapy, he stated that he did not think it would return her to work.
8. On 27 January 1989 Dr Heather Pearson, Osteopath, recommended a "developmental program" for three months which would include massage and osteopathic work, exercises, guided relaxation and visualisation with body awareness techniques. The aim of the program was to:

" ... decrease her anxiety levels, increase her self esteem and her ability to trust and feel safe outside of her home, in contact with other people and potentially in a work environment".

9. Ms Excell commenced massage treatment therapy with Mr Rodney Sparkes on 18 March 1992 which continued until 26 July 1994 when Mr Sparkes left to live on the mainland. Thereafter Ms Excell's massage treatments were continued at the Newdegate Health Centre and with Joanne Bourne until 17 December 1996.
10. Comcare records tendered in evidence (Claim Invoice Line Item List) indicate that Ms Excell had attended for massage therapy on 150 occasions at a total cost of $8,680.00 between March 1992 until December 1996. Comcare's Invoice Item List indicates that no further claims were paid from 17 December 1996 until 29 July 2005 which was for a GP consultation at the Northern Suburbs Clinic.
11. It was Ms Excell's evidence that from the end of 1996 she had decided that she no longer wanted to be dependent on medical treatment and massage therapy and was determined to self manage her symptoms as best she could without medical intervention. She undertook a Diploma in Remedial Massage and qualified in December 1996. She commenced work as a part-time masseur in 1997. Ms Excell said that she continued to self manage her symptoms for a considerable period until 2004.
12. Ms Excell sought access to her Comcare file during the course of negotiating a disability pension with Centrelink. It was the perusal of this file relating to her previous claim which caused an intensification of her symptoms. On reading the file Ms Excell experienced a reliving of the issues that led to her compensation claim which caused her much stress and anxiety.
13. The failure of her claim for permanent impairment was a further disappointment and shock to her. Ms Excell then sought help from Dr Beltz who referred her to Rosemary Laver, Clinical Psychologist.
14. On 31 July 2008 Dr Ian Beltz wrote that Ms Excell:

"... would benefit from regular weekly massage for a trial period of six weeks. This is to treat her compensable condition".

15. Ms Excell subsequently lodged a claim for massage treatment which was refused on 8 August 2008 on the basis that massage treatment would not treat her compensable psychological condition but rather its symptoms.
    
16. On 1 September 2008 Rosemary Laver wrote a report in which she fully supported the use of therapeutic massage as an appropriate and valid treatment intervention for the medical and psychological management of Ms Excell's post traumatic stress disorder. On the basis of Ms Laver's report Ms Excell sought a reconsideration of Comcare's decision which was affirmed on 1 December 2008.
17. The above information was provided by the parties in the form of the T Documents, oral evidence and other tendered documents. It was not contradicted and the Tribunal accepts the above background facts.

THE EVIDENCE

18. Ms Excell represented herself and gave oral evidence at the appeal hearing. It is Ms Excell's contention that Comcare's decision to refuse her claim for payment of massage treatment is incorrect. Ms Excell maintains that massage treatment therapy assisted her in the past to achieve a level of functioning that was acceptable to her. It was Ms Excell's evidence that her present state of ill health largely results from the consequences of reading her Comcare file and she contends that Comcare should take responsibility for restoring her health to a level at which she could comfortably function.
19. Ms Excell did not call any other witnesses to give evidence on her behalf but tendered numerous medical reports from practitioners that she had consulted over the years. Ms Excell referred the Tribunal to a letter written by Comcare Australia in 1994 as evidence of Comcare's acceptance of liability for massage therapy to treat her compensable condition. Ms Excell was strongly critical of Comcare's response to treatment of her compensable condition. She maintained that due to Comcare's lack of support she was forced to seek alternative forms of treatment.
20. In addition to her own evidence regarding the benefits that she has experienced from massage therapy treatment, Ms Excell relied on three written recommendations from Dr Beltz her treating GP, a report from Rosemary Laver, her treating psychologist, a letter from Dr Saxby Pridmore, and a letter from her treating psychiatrist, Dr Marzena Ryvak. Ms Excell also referred to written reports of Dr Warwick Ashley who supported therapeutic massages as necessary treatment to help her somatic problems.
21. Dr Ashley's recommendations for massage treatment were made some years ago and prior to the relapse in Ms Excell's mental health for which she now seeks treatment.
22. Dr Ryvak more recently wrote on 24 November 2009:

"Although massage is not regarded as a "mainstream treatment for anxiety" on its own, used in combination with other treatments it has been proven to be beneficial to numerous anxiety sufferers.
As anxiety causes muscle tension, headaches etc massage can usually alleviate this and lead to muscle relaxation, a calming effect and gives a feeling of general well being, and where patients find this helpful I would strongly encourage it to be continued.
Beneficial effects of remedial massage are commonly recognised by "mainstream medicine" and all Australian health funds included in their cover.
As a treating medical practitioner I would strongly support and encourage Ms Excell to continue with her remedial massage as an important part of her treatment".

23. Mr Craig Hobbs who appeared on behalf of the respondent said that the respondent acknowledges that massage treatment can result in muscle relaxation producing a calming effect and a feeling of general wellbeing but submitted that the beneficial effects are temporary and that there is a lack of substantiated medical evidence to support a conclusion that massage therapy treatment is reasonable treatment for psychiatric illnesses.
24. The only witness called by the respondent was Dr Ian Sale, Consultant Psychiatrist, who first saw Ms Excell in December 2006. Dr Sale undertook a review of Ms Excell's history which included a number of medical reports dating from 1986. In his report Dr Sale addressed Ms Excell's symptoms, medical condition, contributing factors and impairment status. At that time Dr Sale did not agree with the diagnosis of PTSD and instead considered that she suffered from another form of anxiety disorder namely, panic disorder with agoraphobia. With respect to treatment Dr Sale recommended cognitive behavioural therapy and pharmacological management such as SSRI antidepressants.
25. Dr Sale's most recent report followed a second consultation in April 2009. Dr Sale was asked for his opinion as to the appropriateness of massage treatment for Ms Excell's condition. Whilst he was able to accept that Ms Excell finds that massage treatment provides temporary relief of her symptoms, he did not consider it appropriate treatment for her anxiety condition. Dr Sale said that massage treatment is of no therapeutic value in that it does not treat the cause of an anxiety condition but provides only temporary relief. He noted that Ms Excell had informed him that the benefits of her massage treatments had lasted for a maximum of two days.
26. Dr Sale referred to the available research undertaken with respect to massage therapy and concluded that there is no persuasive evidence that massage has a place in the therapeutic treatment of psychiatric illnesses. He considered that massage treatment is beneficial for pain related injuries where it can speed healing and reduce pain.
27. Dr Sale further opined that massage treatment can be counter productive when used in the longer term as it tends to reinforce a persons perception of themselves as a patient dependent on such treatment. Dr Sale saw this a significant risk and considered that Ms Excell's pattern of treatment between 1992 and 1996 when she undertook some 150 massage treatment sessions could have led to a state of dependence on such treatment. Dr Sale noted that the Commonwealth Health Insurance Fund, Medicare only offers rebates for 12 sessions within 12 months without further justification.
28. It was Dr Sale's recommendation that Ms Excell undertake a graduated exercise program and recommended swimming under the supervision of a personal trainer. He said that swimming would provide progressive muscle relaxation and avoid the opportunity for anxiety breathing.
29. Further support for Dr Sale's evidence was provided in the form of a copy of a paper entitled A Meta-analysis of Massage Therapy Research written by Christopher A Moyer, James Rounds and James W Hannum from the Department of Educational Psychology with the University of Illinois, USA. The paper analysed available research and suggested that further research is necessary before a conclusion could be made as to whether massage therapy is effective as psychotherapy.
30. Rosemary Laver also referred to this paper claiming that research that has been conducted since 1998:

"... provides a documentation of the benefits of massage therapy and stress management".

31. She referred to the publication "Acute Stress Disorder and Post Traumatic Stress Disorder Practitioner Guide (ACPMH February 2007)" and quoted the following:

"Where symptoms have not responded to a range of trauma focused interventions, evidence based non trauma focused interventions (such as stress management) and/or pharmacotherapy should be considered".

Ms Laver commented that the ACPMH Guidelines also recommended that more attention to teaching emotional regulation skills may be required which would include relaxation and mindfulness techniques.

32. Ms Laver commented that Ms Excell had been provided with trauma focused interventions in the past which had not provided any long term benefit despite her very positive attempts to rehabilitate. In Ms Laver's opinion all of these points support the use of therapeutic massage as a legitimate means of reducing Ms Excell's level of heightened arousal. Ms Laver concluded in her report of 1 September 2008:

"I fully support the use of therapeutic massage as an appropriate and valid treatment intervention in the medical and psychological management of Ms Excell's Post Traumatic Stress Disorder".

33. The other recent recommendation for massage treatment was from Dr Beltz on 31 July 2008 when he recommended weekly massage for a trial period of six weeks.

LEGISLATION

34. The claim for massage treatment arises under section 16 of the Act which reads as follows:

"(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".

35. Massage treatment is defined in section 4 of the Act as:

" ...
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
...
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be".

36. Section 4 defines the term therapeutic treatment as:

"... includes an examination, test or analysis done for the purposes of diagnosing, or treatment given for the purposes of alleviating an injury".

The injury in this case is Ms Excell's accepted condition of post traumatic stress disorder.

AUTHORITIES

37. There was no dispute that massage therapy treatment constitutes medical treatment as it is defined in section 4(1) of the Act. The Tribunal is satisfied that massage therapy treatment constitutes therapeutic treatment provided it is administered by a registered masseur in accordance with sub-paragraph (d). The Tribunal must next determine whether it was reasonable for Ms Excell to obtain massage therapy treatment in the circumstances as required by section 16 of the Act.
38. As to the reasonableness of a particular treatment Gray J in Re Jorgensen and Commonwealth (1990) 23 ALD 321 said at 325:

"In my view the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from the particular injury. The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation".

39. A useful summary of previously decided cases with respect to the issue of "reasonable treatment" is contained in the decision of the Tribunal in Mikic v Comcare [2002] AATA 125 which involved a claim for the cost of massage therapy:

"13. Counsel for both parties referred the Tribunal to a number of earlier Tribunal decisions dealing with the issue of "reasonable" treatment. One of these was the decision of Gray J in Re Jorgensen and Commonwealth (1990) 23 ALD 321; 11 AAR 543 and in particular the following passage (at 325/547):
In my view, the question of reasonableness in the circumstances is intended to raise issues as to whether some kind of medical treatment other than that undertaken, or in some cases no medical treatment at all, would have been better for a person suffering from the particular injury. The idea of reasonableness involves objectivity. A reference to the circumstances raises subjective factors, but they are intended to be subjective factors related to the nature of the injury, and not to details of the personal life of an applicant for compensation.
...
14. Reference was made to ... Re Popovic and Comcare [2000] AATA 264; (2000) 64 ALD 171...:
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: Comcare v Watson [1997] FCA 139; (1997) 73 FCR 273 at 276; 46 ALD 481 at 484; 154 ALR 173 at 176 per Finn J. However, in this case any benefit is outweighed by the counter-productive effect of it leading the applicant to a dependent state, inhibiting his ability to learn to cope, and to embark on pain management programs to assist him with that object. Taking into account the whole of the evidence before us, we consider that in the applicant's case it was not in his best interests for passive physiotherapy modalities to have continued beyond 16 September 1997 ...
Even if we found that the short-term therapeutic benefit derived by the applicant was therapeutic for the purposes of the Act, in our opinion it is not reasonable treatment in the circumstances for the reasons mentioned above. To the extent the applicant derives some therapeutic value from the psychological effect of receiving the treatment, psychologists could better provide this in an appropriately devised pain management plan..."

... Re Kentish and Telstra Corporation Ltd [1999] AATA 661 ... the Tribunal ... referred to an earlier decision (Re King and Comcare AAT 13350, 5 October 1998) and quoted the following passage from it:
In determining whether a particular form of treatment is objectively reasonable, applying the test enunciated by Gray J in Jorgensen, we think allowances should be made in appropriate cases for different schools of thought within the medical profession. If a particular form of treatment is advocated by a significant minority of the medical profession, and is regarded by the majority as controversial, we do not think obtaining that form of treatment would not ordinarily be regarded as unreasonable. If, on the other hand, a patient undertakes treatment on the advice of a doctor whose views are at odds with the rest of the medical profession, one would have to conclude that it was not reasonable to obtain such treatment in the circumstances. Whether a particular form of treatment in particular circumstances enjoys sufficient support within the medical profession to be regarded as reasonable is a question of degree".

40. In Mikic v Comcare (Supra) the Tribunal concluded that the weight of the medical evidence was in favour of massage treatment being of benefit to the applicant. The accepted compensable condition was physical relating to the applicant's right elbow and right shoulder girdle. The Tribunal accepted that the applicant had undertaken a variety of treatments with limited success and that massage treatment had improved her functional work capacity. The Tribunal agreed with the medical evidence that massage treatment was only one element in a three pronged program. There was evidence that the applicant suffered a degree of pain and that massage assisted in reducing swelling and pain. As well as psychological treatment which was used to provide the applicant with an understanding of her pain and management techniques, she was undertaking an exercise program in the work place.
41. The obvious difference between the facts in the Mikic case and the current case is that Ms Excell's compensable condition is psychiatric rather than physical. The Tribunal in Re Lovrinovic and Comcare [1998] AATA 1038 concluded that therapeutic massage and chiropractic treatment which provided short term relief for a pain condition arising from a psychological condition did not constitute reasonable medical treatment within the meaning of section 16. The Tribunal referred to the decision of Justice Finn in Comcare v Watson (1997) 22 AAR 516 at 519 where she noted that Comcare had submitted that treatment can only be therapeutic if its object is to cure a disease or injury. Justice Finn went on to say:

"Though some dictionary definitions do emphasise the 'healing or curative' connotation of the words 'therapy and therapeutic', the latters' use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the section 4 definition of 'therapeutic treatment' which includes 'treatment given for the purpose of alleviating an injury".

42. Reference was also made in that decision to Deputy President Forrest's decision in Tiranti-Valenti and Comcare (1996) 45 ALD 478 where he said at page 480:

"The reasonableness of the treatment is a matter of judgment to be assessed by reference to the relevant circumstances ..."

43. The Tribunal in Lovrinovic and Comcare (supra) concluded at paragraphs 67 and 68 that physical therapy is inappropriate for the applicant's condition which was psychologically rather than physiologically produced. They accepted Dr McGill's opinion that the treatment provided only temporary relief from pain and had no curative effect. Anti-depressant therapy was considered to be a more reasonable treatment option than massage therapy.
44. Similarly in the present case there is no medical evidence that massage therapy treatment has been or would have any curative effect for Ms Excell's accepted condition of PTSD. At best it has provided some short term relief and comfort. It was Dr Sale's evidence that Ms Excell has advised him that the benefits from a massage therapy session would generally last up to two days. Whilst Dr Sale agreed that massage therapy can be an effective form of treatment in the short term, he suggested that it is not reasonable to expect Comcare to fund such treatment on an ongoing basis as there is no evidence that it is of any curative benefit with respect to psychiatric conditions. It is notable that Ms Excell has undertaken some 150 massage therapy treatments over a number of years without any evidence of any long term and curative effect.
45. In the Tribunal's decision of Nolan and Comare [2009] AATA 680 the Tribunal heard evidence from the applicant's general practitioner who contended that she was entitled to seek whatever treatment provided her with some relief. The Tribunal preferred the evidence of the specialist medical experts called by the respondent who opined that ongoing massage treatment has no long term benefit and may in fact be contraindicated by fostering dependence on this type of treatment at the expense of undergoing beneficial long term treatment in the form of medication, psychotherapy and an active exercise program. In that case Drs Ratcliff, Sale and Kostas all agreed that that the latter form of treatment would be reasonable medical treatment for the applicant's psychiatric condition.
46. Dr Sale has similarly expressed concerns in this case that compensating Ms Excell for ongoing massage therapy treatment could foster a sickness role and create a risk of dependence. Dr Sale advocated a structured exercise program and recommended an emphasis on self help rather than dependence.
47. Dr Sale commented that Ms Excell's current physical activity is unstructured and that she would benefit from a managed exercise program with assistance from a personal trainer together with psychotherapy and medication as prescribed by Dr Ryvak. He sugested that this would be an effective rehabilitation process which Ms Excell would eventually be able to manage herself without reliance on medication and psychotherapy. He emphasised the positive benefits for Ms Excell in developing her own self managed program in preference to becoming dependent on the support from third parties.
48. Dr Beltz had recommended massage treatment in July 2008 but only for a trial period of six weeks. Dr Ryvak recommended continuation of massage treatment to alleviate muscle tension caused by anxiety. She did not however provide any detail as to the frequency or duration of the treatment and did not refer to the numerous previous massage therapy sessions undertaken by Ms Excell. Dr Ryvak in her report also commented that the beneficial effects of remedial massage are commonly recognised by mainstream medicine. She was however not called to give evidence and the basis of her opinions is unknown. Her views are not consistent with other evidence before the Tribunal as provided by Dr Sale and the written research material.
49. For the reasons outlined above the Tribunal is unable to accept that massage therapy constitutes reasonable medical treatment for Ms Excell's accepted condition of PTSD. The weight of the medical evidence is that massage therapy has no curative effect or long term benefit in the treatment of psychiatric illnesses. On an objective basis it is not treatment that it is reasonable for Ms Excell to obtain in the circumstances of her illness. There are other alternative forms of treatment as outlined by Dr Sale that are likely to provide longer term benefits.
50. Accordingly the Tribunal affirms the decision under review.

ertify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member) and Dr R J Walters RFD (Part-Time Member)

Signed: [R Hunt]

R Hunt (Administrative Assistant)

Date/s of Hearing 14 and 15 December 2009

Date of Decision 12 February 2010

Solicitor for the Applicant Applicant on her own behalf

Counsel for the Respondent Mr C Hobbs

Solicitor for the Respondent Ms N Richards, Australian Government Solicitor