Boutros v Bradford Dye Works Pty Ltd [2000] NSWCC 29 (17 November 2000)

Last Updated: 23 February 2001

CITATION: Boutros v Bradford Dye Works Pty Ltd [2000] NSWCC 29

PARTIES: Antonio Boutros

v

Bradford Dye Works Pty Ltd

TITLE OF COURT: Compensation Court of New South Wales

JURISDICTION: Original

MATTER NO/S: NSWCC 48615 of 1998

DELIVERED ON: 17 November 2000

DELIVERED AT: Sydney

HEARING DATES: 16 March 2000; 14 July 2000; 5 September 2000

JUDGMENT OF: Campbell CJ

NUMBER OF PARAGRAPHS: 60

CATCHWORDS: Workers Compensation; Elements of Workers compensation;

REPRESENTATION

APPLICANT/S

Mr Bates instructed by Stephen Smart & Associates appeared for the applicant.

RESPONDENT/S

Mr Ellison instructed by Hunt & Hunt appeared for the respondent.

Compensation Court of New South Wales

Matter No 48615 of 1998

Antonio Boutros

v

Bradford Dye Works Pty Ltd

Matter No 3820/80/1

Bradford Dye Works Pty Ltd

v

Antonio Boutros

17 November 2000

JUDGMENT

CAMPBELL CJ

On 3 November 1980 Ferrari J made a continuing award in favour of Antonio Boutros (the worker) against Bradford Dye Works Pty Ltd (the employer) for weekly payments of compensation on the basis of total incapacity resulting from an injury on or about 26 January 1979. The award also provided for the payment of s 10 (now s 60) expenses.

On 2 October 1992 in Matter No 7572/91 Commissioner Ashford (as she then was) made an award in respect of s 60 expenses for, amongst other things $4,558.40 for physiotherapy expenses.

In Matter No 48615/98 the worker seeks an award in respect of $8106 for physiotherapy expenses between 31 October 1995 and 14 July 2000 together with a general order to date.

In Matter No 3820/80/1 the employer seeks the termination of the award of 3 November 1980 on the grounds:

(i) The applicant no long (sic) remains totally unfit but is now fit for suitable work.

(ii) The applicant's wife is no longer totally or mainly dependent upon him.

Mr Bates of Counsel appeared for the worker and Mr Ellison of Counsel for the employer. Counsels' addresses have been recorded and it is unnecessary for me to refer to each submission merely to ensure that it is recorded. I can adequately explain my reasons for the conclusions I have reached in quite short form. This approach is assisted by the fact that Commissioner Ashford (as she then was) had dealt with a very similar issue in her detailed judgment of 2 October 1992.

It is convenient to deal with the employer's application first.

Mr Ellison raised but did not support by detailed argument the contention that at some point the worker had ceased to be totally incapacitated for work but rather was partially incapacitated. That there was no such argument is hardly surprising since the proposition is, on the evidence in this case, untenable. I am content merely to quote from the report of Dr Millons, an orthopaedic surgeon, who examined the worker for the employer's insurer on 29 March 1999 and reported to the employer's solicitors on 1 April 1999.

In answer to your letter of 21 January 1999, I note that you are instructed by your client to vary Mr Boutros' ongoing award when he was previously deemed totally unfit.

I cannot see that anything has really changed. Mr Boutros appears to be quite unfit for any form of gainful employ.

The answer filed by the worker conceded that from 1 February 2000 his wife had not been totally or mainly dependent upon him.

Mr Ellison relied upon evidence elicited from the worker in cross examination to found the contention that the wife had ceased to be totally or mainly dependent at an earlier, unspecified, time.

The evidence was very confused and confusing. It appeared that the worker and his wife lived in the same house, however, separately. For some years the wife had had a pension, however, it is unclear as to the nature of it and the amount actually paid to her.

It does appear that the worker provided his wife with the house in which she lived and a proportion, at least, of the food which she ate.

The onus upon this issue, there being an award, lies upon the employer and I am not satisfied that it has been discharged. It is certainly possible that the worker's wife ceased to be relevantly dependent before 1 February 2000; however, that has not been established more probably than not to be the position.

I shall vary the award to delete the provision for the wife from 1 February 2000 and also to formalise the reduction of payments in respect of the two children who have ceased to be dependent.

The worker's physiotherapy expenses were paid by the insurer to 30 October 1995 and thereafter payments have ceased the view apparently being taken that continued physiotherapy treatment is not reasonably necessary medical treatment.

The background of the worker's continuing need for at least some medical treatment appears from the judgment of Commissioner Ashford (as she was then) of 2 October 1992 and I do not consider that there is any need for me to repeat it.

Since 31 October 1995, except for a fifteen month period in 1997 and 1998, the worker has had physiotherapy treatment on an average of once or twice a week which he has paid for himself. It is clear beyond argument that the worker himself found that the treatments eased his pain and improved his mobility, albeit only for relatively short periods of time.

It is also clear that the worker found that the heat applied eased his pain, so much so that there was evidence, which I accept, that he burnt himself using a hot water bottle in an attempt to gain the warmth which Dr Guirgis explained is more effective if applied gradually.

Apart from the worker's subjective view Mr Bates relied primarily upon the evidence of Dr Guirgis and Ms Gyory.

Dr Guirgis is a consultant orthopaedic surgeon specialising in spinal surgery. He has been treating the worker since before June 1981. The doctor had carried out two spinal fusion operations upon the worker, whom he now describes as being "a failed back surgery" and sufferer from chronic pain. The doctor sees the worker quite frequently and is obviously well aware of his continuing problems.

Dr Guirgis said in cross examination:

The physiotherapy is essential. It prevents further deterioration.

The doctor also pointed out that the relief afforded by the physiotherapy, albeit temporary, helped to limit reliance upon drugs which was important in the case of the worker because he suffered from a stomach ulcer. Further, the relief avoided the other alternative of further hazardous attempts at surgical intervention. He considered physiotherapy the safest option.

Mr Ellison cross examined Dr Guirgis quite extensively and at times inappropriately. I was left with a firm view that the highly experienced treating surgeon with an extensive knowledge of the applicant's condition considered that regular physiotherapy was the treatment of choice for the applicant, not for significant long term improvement, but to prevent or delay deterioration, alleviate pain, maintain mobility and at least delay the prospects of the worker becoming wheelchair or bed ridden.

I do not necessarily accept each of the doctor's propositions as to the detailed way in which the ends of physiotherapy were achieved, however, I found the general thrust of the evidence to be compelling.

Much of the cross examination sought to establish that the physiotherapy treatment did not result in permanent improvement and that inadequate records were kept to allow gains to be measured.

The doctor gave the following evidence as to reasonable frequency of treatments:

Q. Now, I want you to accept that he is having physiotherapy once a week these days.

A. Yes.

Q. He has said that he would prefer himself to have it more often if he could. Professionally do you think once a week is appropriate or do you think it should be more often.

A. As I said the amount of the benefit is short lived and it depends - in summer I think he might be quite happy with once a week but in winter that's where the problem starts because the circulation becomes sluggish with the cold weather and with the humid weather and he will need more then.

Q. So in your opinion what would be reasonable for winter time on a week -

A. Again twice a week is reasonable, I would feel that it is reasonable if he needs it. He doesn't come in winter to twice a week. I always tell him, "You come to physiotherapy when you feel that you need that" and I leave it to him. He is a chronic pain patient and now he reached a stage that he can decide for himself when to go out, when not to go out, when to move in bed, when not to move in bed. He's reached this stage now.

I do not think there is quite the conflict there might appear to be between allowing the worker the selection "if he needs it" and the reference to once a week in summer and twice a week in winter. In any event in respect of the period claimed the attendances have not, on average, exceeded the nominated frequencies.

Ms Gyory is the experienced physiotherapist who treated the worker at the Newtown Physiotherapy Centre from 1995 until she left the practice in May 1999. I thought Ms Gyory a very impressive witness. She conceded that her records were not kept as well as they might have been and that she could not speak directly to the worker because of language problems. However, I accept that she considered that she could communicate sufficiently with the worker to carry out her treatments and to assess their effects. It is to be born in mind that with the physiotherapy carried out in the same building occupied by Dr Guirgis and his wife, the worker's general practitioner, discussion between the physiotherapist and the doctors about the patient was easy and I accept occurred.

I accept Ms Gyory's evidence that she noticed a significant deterioration in the worker's condition during the fifteen months when he did not attend. It is convenient to say that I do not think that he did not attend because he did not believe physiotherapy benefited him but because of the need to pay for it himself.

An important piece of evidence, which I also accept, is that Ms Gyory said in cross examination:

A. Well I did give him exercises and I also, especially exercises for that part of the spine which - exercises for the muscles for that part of the spine which stabilises where his injury is.

Q. Again to what extent is Mr Boutros' case in your opinion. Did that have to be done in a concept, under the context of a consultation with a physiotherapist as opposed to just asking him to do things by himself at home or somewhere else.

A. They're very specific movements and unless supervised, if they're not done properly, so there's no point in doing anything else.

Q. The physiotherapy you were giving him did that have any - was that directed in any way to his back extensors.

A. Yes.

Q. Can you tell the court what is the reason for the back extensors being dealt with in the treatments and what you were doing for that purpose.

A. Because the back extensors are one of the group muscles which hold the spine up. If the back extensors are weak the spine just goes forward.

Q. Again to what extent was that something that could only be achieved in Mr Boutros' case in your opinion at a consultation and to what extent could that have been achieved by himself if he was just doing it away from the physiotherapist.

A. In his particular case I think he needed supervision. There are people who can do it after instruction but I think in his case he needed supervision.

Having seen the applicant in the witness box and read a good deal about him in the medical reports I have no difficulty in accepting the last statement.

Ms Gyory did not agree with the propositions put to her by Mr Ellison that her physiotherapy and the frequency of it was unnecessary with regard to the treatment of Mr Boutros or that it had no objective effect upon his health.

No evidence was led as to the reasonableness of the charges for each physiotherapy session as Mr Ellison made it clear that there was no issue as to that matter.

Mr Ellison relied primarily upon the reports and evidence of Mr Schneider a well qualified specialist manipulative physiotherapist who had examined the worker on 4 March 1999 and reviewed medical reports which were not identified. Mr Schneider acts, amongst other things, as a Workcover consultant and, as he put it, part of his physiotherapeutic pursuit is to examine how physiotherapy is delivered in the community.

Mr Schneider summarised his views in his report of 16 March 1999 as follows:

In summary, it is my opinion that continuing physiotherapy for Antonios Boutros could not be considered reasonably necessary for the following reasons:

1. Studies have demonstrated that prolonged physiotherapy does not provide satisfactory long term outcomes for patients with chronic pain disorders, and encourages illness behaviour.

2. It is highly improbable that measurable objective gains from treatment would be evident in the clinical records and in such a case continuing treatment would be contrary to the principles of physiotherapy.

3. The point has been reached where physiotherapy is no longer of measurable benefit to the physical status of the patient and ongoing treatment could amount to overservicing.

4. A prolonged course of physiotherapy has been ineffective in relieving disability and illness behaviour, and will continue to remain ineffective. The form of passive modality physiotherapy being delivered cannot improve function or promote independence and is contra indicated for the chronic stages of this condition.

He also went so far earlier in his report as to say:

The case of Antonio Boutros is an example of the harmful outcomes which can result from prolonged physiotherapy for chronic musculoskeletal disorders.

This is not the view of the treating general practitioner, the treating consultant orthopaedic surgeon, or the treating physiotherapist.

Dr Mahoney, an orthopaedic surgeon, who examined the applicant in July 1998 recommended at that time further treatment in the form of physiotherapy, hydropathy and the wearing of a lumbar corset.

Mr Lazarus, a Rehabilitation Provider, whose report of 19 August 1999 was tendered by Mr Ellison said in that report "In my opinion Mr Boutros would certainly require ongoing physiotherapy ..."

Dr Millons, whilst observing that he could not see how any benefit would occur from continuing physiotherapy went on to say "It might be palliative but it is certainly no way curative."

In a report of 3 August 1999 Mr Schneider analysed the records of the physiotherapist given to the applicant and made many criticisms of the regime and its lack of effectiveness.

As Ms Gyory accepted her record keeping was not as it should have been and some, although not all, of the criticisms of the regime required modification. For example, I accept that there was more exercises carried out than the notes would suggest.

Mr Schneider made the point that the treatment had continued entirely under the directions of Dr Guirgis and referred to the provision of the Physiotherapists Regulation Act that, to quote him, "it remains the responsibility of the physiotherapist to determine the needs and benefits (sic) of the patient."

On the facts of this matter I do not doubt that Ms Gyory considered the treatment necessary to meet the needs and benefits of the applicant. It may well be that good practice would require better records and a more positive approach to the measurement of outcomes, however, at least on the facts of this matter, I do not consider that their absence prevented the physiotherapy being reasonably necessary medical treatment.

I was referred by Mr Ellison to an interlocutory judgment of Harper J of the Victorian Supreme Court in Berger and Ors v Physiotherapists Registration Board of Victoria (BC 9701405, 14 April 1996) dealing with certain aspects of an appeal relating to allegations of unprofessional conduct.

In that judgment Harper J said:

In short, the proper administration of physiotherapy must be accompanied by the maintenance of proper records. If these records are not maintained, then overservicing will at some stage in the treatment occur, because it is the responsibility of the physiotherapist to treat the patient only in so far as physiotherapy can be shown to be of benefit to the patient.

The issue as to whether proper records have been kept from the point of view of a disciplinary tribunal and as to whether particular treatment is reasonably necessary medical treatment is quite distinct.

In this case if I accept Dr Guirgis, Ms Gyory, Dr Mahoney, Mr Lazarus and, possibly, also Dr Millons the applicant has benefited from the treatment and it is not to the point that a Physiotherapy Board might consider that better records should have been kept.

It is of interest to note, having regard to some of Mr Ellison's submissions, that Harper J accepts that there can be benefit to a patient "either by actually increasing the patient's capability, or by maintaining that capability, or by slowing the rate of deterioration". (See Thomas v Ferguson Transformers Pty Ltd (1979) 1 NSWLR 216 per Hartley JA at 220).

Dr Guirgis in a report of 14 September 1999, in effect, replied to the report of Mr Schneider and referred to the literature in support of his views. He said, amongst other things:

The benefit (sic) of physiotherapy in such cases are threefold namely relief of pain, minimisation of pharmaco - therapeutic intake and improvement of function. Mr Schreider refers to the possibility of becoming addicted to physiotherapy. I believe strongly that addiction to physiotherapy is much safer and more acceptable than addiction to addictive painkillers.

He also said:

My experience with Mr Boutros after nearly 20 years of looking after him during which I performed two major operations, that he could be reasonably controlled by the current regime of treatment namely, minimal pain killers, A TENS machine, physiotherapy and encouragement to mobilise. Without the physiotherapy his back become stiff, he becomes disabled, bedridden and home ridden.

The doctor also made the point that each patient should be assessed on his own merits and a treatment decision made as to that patient rather than on some general view that regular treatment for cases of chronic musculoskeletal conditions is regarded by the physiotherapy profession as contra indicated as it encourages dependency.

Mr Schneider riposted with an interesting report of 8 February 2000 which with referral to a range of references, contends that the guidance principles for the management of chronic low back pain have undergone gradual change in the past decade. His report argues that physiotherapy, particularly passive physiotherapeutic modalities, has no place in the treatment of chronic low back pain and that this position is widely recognised within the medical and physiotherapy professions. He repeats his assertion that this position applies to the applicant.

I do not need to resolve the conflicts between Dr Guirgis and Mr Schneider as to matters of general theory for I am persuaded that more probably than not Dr Guirgis is right when he says that the physiotherapy treatments are of continuing benefit to the applicant. The doctor both in terms of qualifications and experience of the applicant is in a much better position than Mr Schneider to express an opinion on that issue.

In Paull v Water Board [1989] NSWCC 10; (1989) 5 NSWCCR 23 McGrath CJ examined the situation where a procedure proposed by one doctor was said not to be reasonably necessary because of the risks it involved. The Judge pointed out that views as to particular treatments can change over time and said:

So long as this particular form of procedure is not universally outlawed by the rest of the profession, I do not think that I can take the view, on that ground, that it is unreasonable.

Whilst I would not, with respect, necessarily place the standard so high, the evidence in this case does not lead me to conclude that the course of treatment prescribed by Dr Guirgis is so in conflict with present practice that I should take the view that it is unreasonable.

Other material has been placed before me in this matter both orally and in writing. I have, of course, considered it, however, I do not think it necessary to refer to it in this short judgment.

It was accepted that the physiotherapy was "medical or related treatment" within s 59 as being "treatment by a ... registered physiotherapist." Reference was briefly made to the alternative that the physiotherapy was "medical or related treatment" as being "therapeutic treatment given by direction of a medical practitioner"; there is no issue that Dr Guirgis directed the treatment.

If, one took the view, which I do not, that the payments are not reasonable because of inadequate record keeping or measurement of outcomes by the physiotherapist, it would seem to me that they would still be reasonable as therapeutic treatment given by direction of Dr Guirgis.

I am persuaded, in particular by the evidence of the treating doctor and treating physiotherapist, that the physiotherapy treatments for the period from 31 October 1995 to 14 July 2000 were reasonably necessary medical treatment and I shall make an award for $8106.

As to the period from 15 July 2000 to date I shall make a general order under s 60 and declare that physiotherapy treatments up to twice a week were reasonably necessary medical treatment.

I was not asked to make a declaration as to the future and would not have thought it appropriate to do so. It may be of assistance, however, if I indicated that, on the evidence before me, a continuing regime of treatments at an average rate of once a week in summer and twice a week in winter would seem reasonable. This is not to say that there may not be particular periods of exacerbation which require more or other treatments.

For these shortly stated reasons I make the following awards and orders:

(i) In Matter No 48615/98:

Award for the applicant under s 60 in the sum of $8106.

Medical expenses - s 60.

I declare that from 15 July 2000 to date physiotherapy treatment up to twice a week reasonably necessary medical treatment.

(ii) In Matter No 3820/80/1

I find that from 1 February 2000 the applicant has had no dependants

I vary the award of 3 November 1980 by decreasing the weekly payments to $234.70 per week, as adjusted, such payments to be continuing.

(iii) The employer is to pay the applicant's costs of both matters.

Mr Bates instructed by Stephen Smart & Associates appeared for the applicant.

Mr Ellison instructed by Hunt & Hunt appeared for the respondent.