Open ended treatments for long tail Comcare cases that do not result in any improved rehabilitation outcomes are an ongoing issue for Agencies and the management of return to work strategies and their Comcare Premium. Challenging passive and ineffective treatment to encourage better rehabilitation outcomes is a difficult task where the treatment involved is orthodox, for example, the use of physiotherapy to treat mechanical pain. Although one session of physiotherapy a week does not sound like much, 300 sessions over the life of a compensable injury can add up to a significant sum.

There has been a misconception that employees who have an accepted workers’ compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), will be entitled to ongoing medical and therapeutic treatment where it relates to their compensable injury. For example, an employee with an accepted spinal injury will be entitled to ongoing physiotherapy or an employee with an accepted psychiatric condition will be entitled to ongoing psychological counselling.

Recent decisions of the Administrative Appeals Tribunal demonstrate that this is not the case, and that Agencies are right to question ongoing treatment where there is no foreseeable likelihood of long term improvement in the employee’s compensable condition and where there is no movement to self-management.


The requirement of subsection 16(1) of the SRC Act is that for compensation to be payable in respect of the cost of medical treatment obtained in relation to an injury, the treatment must be ‘reasonable for the employee to obtain in the circumstances’.

In Alamos and Comcare [2014] AATA 629, the Tribunal found that it was necessary to consider all of the circumstances, and not only the beneficial effects which may be obtained by the suggested treatment. The Tribunal found that some, but not necessarily all, of the relevant factors in relation to the ultimate determination 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; and
  • the cost of ongoing treatment.

In the case of Alamos, Mrs Alamos had received more than 300 sessions of physiotherapy for her accepted ‘aggravation of lumbosacral (joint) (ligament) strain’. The medical evidence was that, while the physiotherapy did result in short term relief from pain and the gaining of flexibility, it would not result in long term improvement of Mrs Alamos’ compensable condition. The Tribunal noted the application of the Clinical Framework for the Delivery of Health Services and found that ongoing physiotherapy was not reasonable in the circumstances as any benefit to be gained by Mrs Alamos from continuing such treatment was outweighed by the cost which would be incurred and the possible benefits of alternative treatment.

In Topping and Comcare (Compensation) [2015] AATA 525 (17 July 2015), the Tribunal found Ms Topping’s weekly massage for her compensable Post Traumatic Stress Disorder was not reasonable as ‘some object of measurable improvement [in the compensable condition] … is necessary to weigh in the scales brought forth by s 16 against the ongoing cost to the taxpayer of these treatments.’

In Tzioumis and Comcare (Compensation) [2016] AATA 154 (16 March 2016), it can be inferred from the Tribunal’s findings that Mr Tzioumis’ 3-4 Bikram yoga classes per week were not reasonable in the circumstances as the yoga did not meet the principles of the Clinical Framework. In this case, the Tribunal affirmed Comcare’s decision on the basis that the yoga was not undertaken by, or under the supervision of specified health practitioners.


The circumstances that Agencies should consider when looking at challenging passive and ineffective ongoing medical and therapeutic treatment are:

  • Whether the treatment is medically indicated;
  • Whether the treatment will resolve in an ongoing improvement to the compensable condition or will it merely maintain the status quo or provide palliative care (e.g. short term pain relief or muscle loosening);
  • How many treatments the employee has received using the same modality (e.g. massage, physiotherapy, counselling);
  • What the overall cost of each modality has been and how much this will cost in the future;
  • Whether the goal of the treatment is to move to self-management of the compensable condition by the employee; and
  • Does the treatment conform to the Clinical Framework for the Delivery of Health Services, in that the employees’ treaters:
    • can measure and demonstrate the effectiveness of treatment;
    • adopt a biopsychosocial approach;
    • empower the injured person to manage their injury;
    • implement goals focused on optimising function, participation and return to work; and
    • base their treatment on best available research evidence.