Injured worker trial pain treatment allowed – AAT


Further to our article of yesterday entitled “Reform needed for work injured people” which highlights WorkCover’s gross inadequacies such as depriving injured workers who suffer from pain syndromes of adequate multidisciplinary CBT-orientated pain treatment until they are un-salvageable, here is a fairly recent (2009) legal case case demonstrating to what length (pain and resources) injured workers must go to have their pain treatment approved. In this particular case, Australia Post was found liable to pay for an injured worker’s pain treatment by means of  insertion of a spinal cord stimulator, with the AAT (Administrative Appeals Tribunal) ruling the injured worker had “no reasonable alternative” but to undertake this procedure.

Injured worker trial pain treatment allowed – AAT

Background of the case

In July 2001, a postal worker suffered back pain  after lifting an unlabelled express post mail bag, estimated to weigh 35 kg. Following his injury the injured worker was put on modified duties, however his pain did not subside and he also suffered from numbness down his left side. Australia Post accepted liability for the injury.

The injured worker eventually underwent surgery on 3 separate occasions in an attempt to stop the ‘severe, disabling’ pain. After each operation the injured worker returned to work on light duties, and managed to work his way back to full-time hours, however the pain continued.

The claim for the insertion of a spinal cord stimulator

A claim for the insertion of a spinal cord stimulator — surgery involving electrodes being placed into the injured worker’s spine — was however (and of course) denied.

Australia Post argued it was not liable for trial treatment and that its insertion was “too costly to be considered ‘reasonable treatment’ under the Safety, Rehabilitation and Compensation Act 1988.(Comcare)

The treatment cost was estimated to be in excess of $50,000.

The poor injured sod had no option but to take the matter all the way to court! He most likely crawled to court!

The Hearing: the injured worker’s pain should NOT continue

Thankfully, the AAT [Senior Member John Handley] found the trial pain treatment procedure (insertion of a spinal cord stimulator) was reasonable. He stated that:

‘I am satisfied that all reasonable treatment to date has been undertaken by the applicant and he is left with no reasonable alternative but to undertake the procedure.
He should not be expected to continue to endure the pain that has distressed him for many years and which has caused an emotional reaction precipitating a suicide attempt in late 2008.’

AAT senior member Handley also found that, “although the extent of Australia Post’s monetary liability is (at the time) still not known, that doesn’t preclude a judgment in the (injured) worker’s favour”

‘The extent of its monetary liability will become known only after the outcome of the first stage of the process of stimulation is known.
On the evidence of Dr Thomas, it was critical that a decision on liability with respect to the device should be made. What will then follow is the discussions between the appropriate practitioners and the applicant (worker) to decide the timing of undertaking the procedure.
I am satisfied that the spinal cord stimulation is a reasonable medical and like expense to which the respondent (employer) is liable.’

You can read the full text of the legal case here: Bunyi and Australian Postal Corporation [2009] AATA 655 (1 September 2009)

7 Responses to “Injured worker trial pain treatment allowed – AAT”

  1. @workcovervictim3

    What happened to the edit button that used to be there to correct or edit???

  2. @workcovervictim3

    Yes, I have one of those and I used it continually at one stage however, my pain is now so widespread from my lower back to my big toes, it’s not helpful! Its one of those prtable ones in which you can hang and hide the control around your neck…i might try it tonight seeing its been a long while since i used it….have to take opiates so I can walk in the mornings…I also can’t sleep…there comes a time when the drugs don’t work anymore unfortunately…I’m swapped from one to another every 6 months or so.

  3. My insurance co recently sent my GP a letter stating my leg pain is not Radiculopathy because of their IME report. He was jabbing my legs so fast that I was traumatised during the examination.. -:(
    Then why am I on Lyrica (for nerve pain) and a very high dose at that. Both pain specialists I’ve seen and my neurosurgeon are recommending a SCS. I’d like to see their face’s if i get a referral, fat chance that it will be approved according to my first sentence. I’ve been reluctant to trial it because of the recovery period. And My research has uncovered people still take Pain Killers. But guess what? my times up!!!I’m over 130 weeks and currently awaiting a WCDecision. I’m in so much pain, I could jump off a cliff! Oh, but CBT is the answer!!!!! Then I’ll be fit for work! even though I can’t sit on my rump, just have to increase my tolerance to pain! Huh, No retraining! no nothing! not even the treatment I need because according to the guidelines I’m at maximum medical improvement! No human being should be treated this way!!! Trying to make friends with my pain is the hardest road I’ve travelled! I don’t want a morphine pump!

    • @In Limbo – have you ever tried a TENS machine? One of those nerve stimulators with patches you put on the skin, which sends electrical ‘shocks’ to the area of pain?
      It gives an idea of what a SCS could do – it does not deliver morphine or anything, just sends electrical “shocks” (which you can adjust) which alters the pain sensation to something different and more bearable. Perhaps you should try it – usually your physio can arrange for you to try a TENS and they don’t cost much (to buy your own). Just a thought.

      workcovervictim3 August 27, 2013 at 12:00 pm
  4. whats the bet it cost them more to fight him though the courts than the treatment would have cost. they have paying claims but dont have a problem spending oodles on legal fees to deny things

  5. It’s just goes to show that in law we are entitled to our treatments, but in practice the Claims Manager will continue to withhold these entitlements. This is TORTURE and I hope that worker goes on to sue the Insurer’s for leaving them in pain for so long.