How long should Comcare or a licensee pay for physiotherapy treatment?

Many injured workers covered by the Safety Rehabilitation and Compensation Act 1988 (SRCA) first seek legal advice for an accepted claim when liability for physiotherapy treatment for a longstanding injury is ceased. S 61 of  SRCA provides that:


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.


There is considerable case law to the effect that for treatment to be compensable it must have therapeutic value and Comcare and licensees often argue that treatment can only have therapeutic value if it results in permanent improvement and that treatment which only provides temporary pain relief and or maintenance cannot be regarded as “therapeutic.”


Sommerville and Comcare  [2016] AATA 289 (5 May 2016) is a recent decision which helpfully sets out the circumstances in which physiotherapy and other passive therapy treatments (i.e. hydrotherapy, massage etc) can be regarded as therapeutic. Deputy President Bean said in his decision, “It is clear from the applicable case law, that treatment can be “therapeutic”, even if its only effect is the reduction of pain.”


Deputy President Bean then went on to summarise the case law as follows:


In Comcare v Watson,  (1997) 73 FCR 273), Comcare submitted that a treatment can only be “therapeutic” if its object is to cure a disease or injury. Though some dictionary definitions do emphasise the “healing or curative” connotation of the words “therapy” and “therapeutic”: see eg Shorter OED, 3rd ed; the latter's use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the s 4 definition of “therapeutic treatment” which includes “treatment given for the purpose of alleviating an injury”: [emphasis added]. The Shorter OED, for example, defines “alleviation” as “the action of lightening … pain”. That usage is an appropriate one to apply here given the s 4 definition itself. And it permits a construction which accords with the beneficial purposes of the legislation.


Deputy President Bean also referred to case law which supports the proposition that the provision of temporary relief from pain through physiotherapy can qualify as medical treatment which it is reasonable for an employee to obtain. In Re Chowdhary and Comcare, the Tribunal observed that, “While provision of temporary relief from pain through physiotherapy will in many circumstances qualify as medical treatment which it is reasonable for an employee to obtain, there will in some cases come a point where it is no longer reasonable unless it is part of a plan for permanent improvement.”


As indicated in Chowdhary however, there is also case law to the effect that in some circumstances, continuation of passive physiotherapy treatment is not reasonable. In Re Popovic and Comcare (2000) 64 ALD 171), the Tribunal stated (at [28]):  “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: … 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 interest for passive physiotherapy modalities to have continued beyond 16 September 1997.”


Deputy President Bean said, “Similarly, in Re Alamos and Comcare ([2014] AATA 629), the Tribunal accepted in the context of a back injury that the applicant obtained relief from the pain she suffered and gained flexibility following each session of physiotherapy treatment. However, the Tribunal also stated that in considering whether particular treatment was reasonable, “it is necessary to consider all of the circumstances” and not only the beneficial effects experienced by the injured employee. The Tribunal went on to state:Without intending the list to be exhaustive, some of the factors which may be relevant considerations in the circumstances are:




• the benefit of the treatment to the injured worker;


• the long-term effect of the treatment;


• whether the treatment is likely to cure the injury or significantly reduce its effects;


• whether the treatment maintains the status quo;


• the cost of ongoing treatment.


After referring to the Clinical Framework and other decisions, the Tribunal said: “Mrs Alamos has undertaken more than 300 sessions of physiotherapy which her evidence suggests only results in a short-term alleviation of symptoms. In such circumstances, as noted by the Tribunal in Chowdhary and Popovic, it may not be reasonable to obtain ongoing treatment.”


Deputy President Bean also referred to another case where a similar decision was reached by the Tribunal in Re Durham and Comcare ([2014] AATA 753).  Again, this case involved a back injury which had occurred some 17 years previously. Prior to Comcare’s decision not to pay for further physiotherapy, the applicant was obtaining two sessions of physiotherapy per week. In light of the evidence, previous cases and the Clinical Framework, the Tribunal concluded:


“ I am satisfied from the evidence of the Applicant himself, and all the doctors whose evidence was before me, that there has been no consistent progressive improvement in Mr Durham’s back over the last 17 years. He has become habituated to the physiotherapy, even though he has managed with one session or less a week since December 2013. In considering the application of the case law (Re Popovic and Comcare and Comcare v Rope and Comcare v Holt), and the cost benefit argument, I find that long term physiotherapy such as Mr Durham has had has no place. The ‘Clinical Framework for the Delivery of Health Services’ deals with independence and self management, which has been hampered by Mr Durham’s dependence upon twice weekly Commonwealth funded physiotherapy. I am satisfied that the correct or preferable decision is to affirm the decision of the Respondent of 14 August 2013.


Deputy President Bean concluded however, that a significant point of distinction between those cases and Ms Somerville’s matter was that she was not seeking regular ongoing physiotherapy treatment. Rather, her position was that she required access to physiotherapy as needed, in particular to manage the effects of flare-ups of her condition. He noted that Ms Sommerville’s expectation was that she was likely to need in the order of one or two sessions of physiotherapy per year. He also noted that the cost of the physiotherapy treatment was likely to be in the vicinity of $60 per session.  Deputy President Bean also referred to the records produced by Comcare which verified that Ms Sommerville had made infrequent claims for physiotherapy treatment in recent years and he found for the Applicant in this regard.


The “take out” from this decision is that claims for longstanding physiotherapy treatment will be decided on the facts, will involve a costs benefit analysis and will depend on the therapeutic value of the treatment on an ongoing basis.


There are many decisions where the Tribunal has refused to reinstate liability for physiotherapy treatment which has continued for years with multiple sessions at significant expense and  little obvious improvement. Treatment used sparingly is more likely to be approved and where injured workers become dependent on treatment which does not demonstrably result in any real improvement or alleviation of symptoms is unlikely to be found to be compensable for years on end.

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