Arbon and Comcare (Compensation) - [2019] AATA 1390

Arbon and Comcare (Compensation) [2019] AATA 1390 (21 June 2019)
Division:GENERAL DIVISION
File Number(s): 2017/0752
Re:Gregory Arbon
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member A George & Member M O’Loughlin
Date:21 June 2019
Place:Adelaide

The decision under review is affirmed.
[Sgnd] .

Member A George & Member M O’Loughlin
CATCHWORDS
COMPENSATION – whether gym/hydrotherapy obtained in relation to the accepted condition – whether gym/hydrotherapy reasonable treatment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1998
CASES
Pethes & Comcare [2018] AATA 483
REASONS FOR DECISION
Member A George & Member M O’Loughlin
21 June 2019
INTRODUCTION

This is an application by Mr Gregory Arbon (“the Applicant”) to review a decision of Comcare (“the Respondent”) dated 21 December 2016, affirming the decision of the Respondent at first instance which declined liability for a gym/hydrotherapy program under s 16 of the Safety, Rehabilitation and Compensation Act 1998 (“the Act”).
The Applicant appeared unrepresented. The Respondent was represented by Ms Daniella Di Girolamo.
BACKGROUND
The Applicant is currently aged 54 years.
In 1996, the Applicant sustained a back injury that could be described as an intervertebral disc disorder (lumbar region) during the course of his employment. A claim for compensation under s 16 of the Act was brought in relation to that injury.
In 2001, the Applicant’s injury was aggravated, again during the course of his employment, when he knelt down to examine a frame at floor level. This caused aggravation of the intervertebral disc disorder - lumbar region. That aggravation has since been treated by the Respondent as the “injury” upon which the Applicant’s entitlement to compensation has been based (“the accepted condition”).
The Respondent has submitted that the Applicant has “conflated” the original injury in 1996 and the aggravation in 2001. The Tribunal does not find that such conflation has occurred. However, the Tribunal does find that the initial injury and its aggravation are inherently related and fine distinction between the two injuries is of minimal importance for the purposes of this decision.
There is no dispute that the Respondent was liable to pay compensation in relation to this aggravation.
On 4 August 2009, a delegate for the Respondent determined that compensation would be paid to the Applicant for gym/hydrotherapy treatment up to December 2009.
On 27 August 2010, a delegate for the Respondent determined that the Applicant had no current entitlement to compensation for the accepted condition. On 26 November 2010, a review officer affirmed that determination but that decision was later reversed by agreement, and consent orders were made by the Tribunal on 18 November 2011.
On 19 September 2016, another delegate of the Respondent determined that the Applicant’s gym/hydrotherapy program did not fall within the Respondent’s liability and would not be paid for after June 2016.
The Applicant sought review of this decision and, on 21 December 2016, a review officer of the Respondent affirmed the decision of 19 September 2016.
The Applicant applied to this Tribunal for review of that decision,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arbon and Comcare (Compensation)

Details

AGLC: Arbon and Comcare (Compensation) [2019] AATA 1390
Case: [2019] AATA 1390
Decision Date: 21 June 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision by Comcare to cease funding the Applicant's gym and hydrotherapy program. The Applicant sustained a back injury in 1996, which was aggravated in 2001, with the latter aggravation forming the basis of his accepted condition for compensation purposes. Comcare had previously agreed to fund the Applicant's gym and hydrotherapy treatment, but later determined that the Applicant no longer suffered the effects of the accepted condition and that the ongoing costs of the program were not reasonable. The Applicant sought an order that Comcare remain liable for the costs of his gym and hydrotherapy treatment.

The Tribunal was required to determine whether the Applicant continued to suffer the effects of the accepted condition, whether the gym and hydrotherapy treatment was obtained in relation to that condition and was reasonable in the circumstances, and consequently, whether Comcare was liable to pay for the program from 19 September 2016. The Tribunal noted that the Applicant's entitlement to compensation was based on the aggravation of his intervertebral disc disorder in 2001.

The Tribunal found that the Applicant's current back symptoms were wholly attributable to a pre-existing degenerative disease of his spine, which had been rendered symptomatic by the 1996 injury and aggravated in 2001. Crucially, the Tribunal concluded that the effects of the accepted injury and aggravation were no longer present in the Applicant's presentation, meaning his symptoms would likely persist even without the prior work-related incidents. Furthermore, the Tribunal found that the gym and hydrotherapy program did not augment the Applicant's existing regimen of home-based exercises and walking. Consequently, the cost of the program was not justified and not considered "reasonable" under the relevant legislative framework. The decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant appeared unrepresented. The Respondent was represented by Ms Daniella Di Girolamo.BACKGROUND The Applicant is currently aged 54 years. In 1996, the Applicant sustained a back injury that could be described as an intervertebral disc disorder (lumbar region) during the course of his employment. A claim for compensation under s 16 of the Act was brought in relation to that injury. In 2001, the Applicant’s injury was aggravated, again during the course of his employment, when he knelt down to examine a frame at floor level. This caused aggravation of the intervertebral disc disorder - lumbar region. That aggravation has since been treated by the Respondent as the “injury” upon which the Applicant’s entitlement to compensation has been based (“the accepted condition”). The Respondent has submitted that the Applicant has “conflated” the original injury in 1996 and the aggravation in 2001. The Tribunal does not find that such conflation has occurred. However, the Tribunal does find that the initial injury and its aggravation are inherently related and fine distinction between the two injuries is of minimal importance for the purposes of this decision. There is no dispute that the Respondent was liable to pay compensation in relation to this aggravation. On 4 August 2009, a delegate for the Respondent determined that compensation would be paid to the Applicant for gym/hydrotherapy treatment up to December 2009. On 27 August 2010, a delegate for the Respondent determined that the Applicant had no current entitlement to compensation for the accepted condition. On 26 November 2010, a review officer affirmed that determination but that decision was later reversed by agreement, and consent orders were made by the Tribunal on 18 November 2011. On 19 September 2016, another delegate of the Respondent determined that the Applicant’s gym/hydrotherapy program did not fall within the Respondent’s liability and would not be paid for after June 2016. The Applicant sought review of this decision and, on 21 December 2016, a review officer of the Respondent affirmed the decision of 19 September 2016. The Applicant applied to this Tribunal for review of that decision, giving rise to these proceedings. ISSUES The Applicant essentially sought an order that the Respondent is liable to continue to meet the cost of him undertaking gym/hydrotherapy treatment. The Respondent submitted that the issues to be determined by the Tribunal are:(a)Whether the Applicant continues to suffer the effects of the accepted condition; (b)If so, whether the gym/hydrotherapy is obtained in relation to the accepted condition and is reasonable to obtain in the circumstances; and(c)Whether the Respondent is liable to pay compensation for the cost of the gym/hydrotherapy program from 19 September 2016. The Tribunal observes that issues (a) and the first part of issue (b) largely overlap in this matter and that the resolution of issue (c) flows naturally from the resolution of issues (a) and (b).LEGISLATIVE FRAMEWORK

Evidence

Evidence Before The Court

Medical treatment is relevantly defined in s 4 of the Act to mean:(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or (b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or (c) …; 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; or …(i)any other form of treatment that is prescribed for the purposes of this definition.THE EVIDENCEThe Applicant The Applicant gave evidence that he believed his condition was caused by an incident at 10 a.m. on 1 October 1996. At that time, the Applicant picked up a 17 inch computer monitor that weighed approximately 19 kilograms. His back immediately “felt funny” and became more stiff and painful over the following days. The substance of the Applicant’s evidence is that there has been no gradual progression or change in his injury of 1996, other than that his ability to walk as far and as fast is decreasing. There has not been a time since this injury that he has been completely pain free. He experiences pain, discomfort, and stiffness on performing everyday tasks at home, work, and in general life. The Applicant has managed his back pain since 1996, relying heavily on pool based exercises three times a week. For this, the Applicant has required a gym membership to give him access to a suitable pool, namely a pool that is heated, of uniform depth throughout that allows for walking, and at least 12 metres in length. The pool at the gymnasium that the Applicant has been attending is ideal; being heated, having a uniform depth of about 1200 mm, and being 25 metres in length. The Applicant said that the gymnasium also has steam and sauna areas which he sometimes uses. He said that he goes three times a week and believes that his core fitness is improved as a result, which leads to fewer aggravations of his back condition. The Applicant has also tried to manage his back pain in other ways although he has found this difficult, as he acknowledges that he is very cautious about doing anything that may aggravate his back. He has tried Chi Quong, Tai Chi, and Pilates classes. Although the Applicant found that the Tai Chi and Pilates were liable to aggravate his condition, the gentler Chi Quong exercises were helpful. The Applicant has found that physiotherapy, chiropractic treatment, and remedial massage have been of limited assistance and have sometimes aggravated his symptoms. The Applicant has found anti-inflammatory and pain killing tablets to be of marginal use. He gave evidence that he believes that the only long term therapeutic activity that has helped him is the combination of daily home based exercises and exercising in the pool three times a week. He said that his main symptoms of back pain and restriction have been continual, neither permanently improving nor much worsening, save that he now notices that his walking is sometimes compromised both in speed and the distance that he is able to walk. He said under cross examination that he also walks as part of his home based exercise program.

Decision

Reasons for decision

The Tribunal finds that, in any event, the gym and hydrotherapy program does not augment the Applicant’s regimen of home based exercises and walking. On that basis, its cost is not justified and the ongoing cost is not “reasonable” as contemplated by s 16(1) of the Act, particularly as considered in Pethes and Comcare.[2] [2] [2018] AATA 483, at [49] - [50].DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Tribunal had the benefit of reports from other medical practitioners and allied health professionals who did not appear before the Tribunal. The Tribunal has regard to the report of Dr Andrew Zisos, general practitioner, dated 14 September 2017, in which he says “The degeneration was probably a result of the initial injury”. To the extent that this is inconsistent with the evidence of Dr Thoo and Mr Haig, the Tribunal prefers the evidence of Dr Thoo and Mr Haig who are specialists, who gave evidence in the hearing, and who were submitted to cross-examination.CONSIDERATION The Tribunal finds that the Applicant’s back pain and restriction are caused by a pre-existing degenerative disease of his spine which was rendered symptomatic by the injury in 1996 and aggravated by the later injury in 2001. The Tribunal finds that the effects of that injury and the aggravation are no longer present in the Applicant’s presentation and that his back symptoms are now wholly attributable to the pre-existing degenerative disease. This means that it is likely that the back symptoms from which the Applicant now suffers would be present even if he had not suffered the injury and aggravations of 1996 and 2001. The Tribunal finds that, in any event, the gym and hydrotherapy program does not augment the Applicant’s regimen of home based exercises and walking. On that basis, its cost is not justified and the ongoing cost is not “reasonable” as contemplated by s 16(1) of the Act, particularly as considered in Pethes and Comcare.[2] [2] [2018] AATA 483, at [49] - [50].DECISION The decision under review is affirmed.