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

1. 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”).

2. The Applicant appeared unrepresented. The Respondent was represented by Ms Daniella Di Girolamo.

   BACKGROUND

3. The Applicant is currently aged 54 years.

4. 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.

5. 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”).

6. 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.

7. There is no dispute that the Respondent was liable to pay compensation in relation to this aggravation.

8. 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.

9. 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.

10. 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.

11. 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.

12. The Applicant applied to this Tribunal for review of that decision, giving rise to these proceedings.

    ISSUES

13. The Applicant essentially sought an order that the Respondent is liable to continue to meet the cost of him undertaking gym/hydrotherapy treatment.

14. 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.

15. 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

16. With respect to compensation for medical expenses, s 16 of the Act relevantly provides:

    16 Compensation in respect of medical expenses etc.

    (1) 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.

    (2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment. (Emphasis added).

    …

17. 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 EVIDENCE

    The Applicant

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. The Tribunal assessed the Applicant’s evidence to be honest. It was clear that he believes that he continues to suffer the effects of his 1996 injury and the aggravation in 2001 and that these effects are best managed through home exercises, walking and pool based exercises.

    Medical Evidence

29. The Tribunal had the benefit of hearing expert medical evidence. Dr A C K (Tony) Thoo, Occupational Physician, was called by the Applicant. Mr Ronald Haig, Consultant Orthopaedic Surgeon, was called by the Respondent.

30. Particular note is made of the evidence of Dr Thoo. In Dr Thoo’s report dated 25 October 2017,[1] his assessment was as follows:

    “Greg presents with symptoms and signs consistent with lumbar degenerative disease which he reports had never ever settled to its pre-aggravation state, following the lifting incident at work in 1996. Accepting his narrative to be truthful and accurate, it can be argued that the effects of the aggravation have never fully settled and he continues to suffer symptoms and restrictions as a result. Whether his current ongoing symptoms would have occurred due to the degenerative change, irrespective of his aggravation is certainly possible but from the medical perspective, it is impossible to say which is more likely to be the case.”

    [1] Exhibit A1, at page 2.

31. This evidence is equivocal as to whether the Applicant is still suffering the effects of the accepted condition. The Tribunal also notes that, under cross-examination, Dr Thoo accepted that it was in fact “unlikely” that the Applicant would still be suffering the effects of the accepted condition.

32. In response to a question put by the Tribunal, Dr Thoo said that the benefit of doing exercise in the water as opposed to on land was that it made it easier to exercise without putting as much pressure on discs or nerves.  He went on to say that the benefits of water based exercises can generally be achieved on land and that it was doubtful that hydrotherapy would provide any additional benefit over land based exercises alone.

33. The Applicant is not assisted by the evidence of Mr Haig. The substance of Mr Haig’s evidence was that the Applicant’s current symptoms are the result of an underlying degenerative disc condition; not the accepted condition or the original injury in 1996. This is consistent with Dr Thoo’s opinion that it is “very unlikely” that the Applicant would still be suffering the effects of the accepted condition.

34. 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

35. 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.

36. 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.

37. 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

38. The decision under review is affirmed.

39.     I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member A George and Member M O’Loughlin

..........[Sgnd]..........................................

Associate

Dated: 21 June 2019

Dates of hearing:	14 and 15 March 2019
Applicant:	In person
Advocate for the Respondent:	Daniella Di Girolamo (Counsel)
Solicitor for the Respondent:	Michael La Vista, Sparke Helmore Lawyers