Bjork v National Parks and Wildlife Service

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bjork v National Parks and Wildlife Service [2023] NSWPIC 631
APPLICANT:	Richard Bjork
RESPONDENT:	National Parks and Wildlife Service
MEMBER:	Rachel Homan
DATE OF DECISION:	24 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for compensation pursuant to section 60; whether provision of an exercise bike reasonably necessary as a result of accepted arm injury; where no dispute that loss of fitness and weight gain resulted from the injury; applicant required to satisfy fitness requirements in order to perform his pre-injury duties; applicant resides in a remote area with no gym access; evidence that no further treatment required for arm injury; Held – the exercise bike was reasonably necessary to treat the consequential conditions which resulted from the arm injury; award for the applicant pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The provision of an exercise bike as claimed is reasonably necessary as a result of the injury pursuant to s 60 of the Workers Compensation Act 1987. The Commission orders: 2. The respondent to pay the costs of the exercise bike in accordance with s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Richard Bjork (the applicant) was employed as a senior field officer and firefighter by the National Parks and Wildlife Service (the respondent).
On 6 February 2020, the applicant was in the course of his employment when he was struck by a large falling tree and sustained an injury to his right arm.
Liability to pay compensation in respect of the injury was accepted by the respondent’s insurer.
On 24 November 2021, the applicant requested that the insurer pay the costs of an exercise bike pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
Liability to pay that expense (incorrectly referred to as a treadmill) was disputed in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 25 February 2022 and 9 March 2022, on the ground that it was not reasonably necessary as a result of the injury.
The applicant’s solicitor sought internal review of those decisions and, on 13 April 2022, the insurer maintained that the reimbursement costs of an exercise bike were not reasonably necessary as a result of the injury.
The present proceedings were commenced by lodgement of an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (Commission) on 27 September 2023. The applicant sought lump sum compensation and domestic assistance compensation in addition to the claim for the costs of an exercise bike.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

At a preliminary conference on 2 November 2023, orders were made remitting the claim for lump sum compensation to the President for referral to a Medical Assessor. It was agreed that consideration of the claim for domestic assistance ought to be deferred until receipt of the Medical Assessment Certificate. The dispute with regard to s 60 expenses was referred for conciliation arbitration in the intervening period at the request of the applicant.
The parties appeared for conciliation conference and arbitration hearing on 20 November 2023 via Microsoft Teams. The applicant was represented by Mr Stuart Grant of counsel, instructed by Mr Digby Dunn. The respondent was represented by Ms Lyn Goodman of counsel, instructed by Ms Fiona King. A representative from the insurer was also present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the exercise bike expenses are reasonably necessary as a result of injury pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 22 June 2022.
The applicant stated that, as a result of the injury on 6 February 2020, he suffered a compound fracture of his right humerus and pain in his neck. The applicant continued to suffer from nerve damage in his right arm. The applicant required two operations, including a bone graft and the insertion of plates.
As a result of the injury, the applicant’s arm was extremely painful. The applicant was unable to exercise due to the pain. Even walking through the bush on his property caused too much pain. The applicant was unable to complete his normal work duties and was stuck doing desk work at home for about 18 months. The applicant’s normal duties were field-based and involved physical work outdoors.
In order to return to his normal physical work, the applicant was required to complete a physical fitness test.
Prior to the accident, the applicant was very fit act was able to satisfy the fitness requirements of his role. These included an “arduous pack test”, which involved walking 5km in 45 minutes carrying a 20.5kg pack. The applicant was previously able to complete this test in 39 to 42 minutes.
After the accident, the applicant gained approximately 12kg in bodyweight and suffered a significant reduction in his fitness levels.
At the time of his statement, the applicant was due to undertake the arduous pack test in July 2022. In preparation for the test, the applicant had been training to improve his aerobic fitness. The applicant had been seeing an exercise physiologist for about 12 months. The applicant had been advised to start using an exercise bike at home as part of his training program in order to increase his aerobic capacity.
The applicant asked the insurer to assist with the costs of purchasing an exercise bike but his request was refused.
The applicant purchased the exercise bike on 9 March 2022 at a cost of $899.

Treating evidence

In response to a questionnaire dated 3 November 2021, on 26 November 2021, the applicant’s hand surgeon, Dr Bryce Meads, answered “No” when asked whether any further treatment was needed. Dr Meads said that “apart from strengthening” there was not much more of a role for hand therapy.
The applicant’s treating psychologist, Mr Joe Gubbay, prepared a report for the applicant’s general practitioner on 13 December 2021 in which he stated:
“Richard’s level of fitness has declined as a result of his inability to exercise stemming from his injuries. He requested an exercise bike but this was declined by the insurer. He is concerned about whether he will pass an Arduous Pack Test in which he is required to carry a heavy load at speed for 5 km. He has put on 10 kg since the accident. An OT assessment in September 2020 reportedly concluded that he could not do fencing work or cut firewood; apparently the insurer did not receive the report.
…
Purely from a mental health perspective providing Richard with the means to exercise is warranted though I would leave it to suitably qualified professionals to advise what would be appropriate given his injuries.”
On 16 December 2021, the applicant’s general practitioner, Dr Karthikk Sajir, prepared a report for the insurer in which he stated,
“l do believe that with ongoing physical therapy, Richard can improve from the perspective of motor function. He will also need to work on his stamina and endurance to complete the arduous firefighter assessment, something that declined due to injury. He will not pass the test with his present level of fitness. I would encourage you to consider aiding Richard with regards to this by providing him with exercise equipment.”
Exercise physiologist, Ms Sarah Samanna, prepared a report for the applicant’s general practitioner on 20 December 2021, in which she noted:
“Richard has reported a significant decline in his overall fitness and ls struggling to complete tasks and which he previously had no difficulty with. As a result of his injury, Richard has become more sedentary due to being unable to complete many tasks for an extended period of time particularly in the early stages. Due to this Richard is concerned about his ability to complete some tasks at work due to becoming fatigued.”
Ms Samanna prepared a further report for the applicant’s solicitor on 30 March 2022 in which she stated:
“Richard has been provided with a home exercise program. Based on my professional opinion I believe an exercise bike would help Richard increase his aerobic capacity. An exercise bike allows for Richard to be able to increase his ability to work at higher intensities which as a result increases his heart’s ability to transport oxygen and increase his overall aerobic capacity.
There is strong evidence that completing 2 - 3 sessions per week on an exercise bike for at least 8 weeks increases VO2 max (maximum amount of oxygen an individual can utilise) by 8-10% (Chavarrias ext al., 2019). This correlates to an increase in aerobic capacity. Therefore it can be concluded that if Richard was to complete a home program on an exercise bike at least 2 times per week, he will have an increase in aerobic capacity and in turn increase his ability to complete the pack test.”
An injury management consultation report dated 23 November 2022 completed by Dr Kanav Malhotra indicated that the applicant was unlikely to return to his pre-injury duties in the long-term and would require permanently modified duties. The applicant remained unable to complete the arduous pack test. This opinion was noted to be consistent with the certifications in the applicant’s SIRA Certificates of Capacity.

Other evidence

A medical assessment form for firefighters attached to the ARD indicates that amongst the requirements of the role was a “Task Based Assessment” described as follows:
“Frontline fire fighters are required to complete an annual task based fitness assessment. The minimum requirement for frontline fire fighting is a Moderate Field Test (walking 3220m carrying an 11.3 kg pack or weight vest in 30 minutes). Remote fire fighters a required to complete an Arduous Pack Test (4830m carrying a 20.4 kg pack or weight vest in 45 minutes, or 15.4kg for participants who weigh 68kg or less).
Some Incident Management Roles also require the Moderate Field Test, and the minimum requirement for any person entering the fire ground is the Light Walk Test (walking 1600m in 16 minutes with no weight).”
A receipt from Intersport, Tamworth confirms the purchase of an exercise bike on 9 March 2022 at a cost of $899.

Dr Miniter

The respondent relies on a medico-legal report prepared by orthopaedic surgeon, Dr Paul Miniter, dated 14 February 2022.
Dr Miniter took a history of the injurious event and noted that the applicant was flown to Canberra Hospital where he was admitted under Dr Damian who performed open reduction and internal fixation. Post-operatively, the applicant was transferred home and was off work for many months. He was eventually noted to have a delayed union of the humeral fracture and underwent bone grafting. The applicant had been monitored by Dr Meads since the second surgical procedure. The applicant was continuing with physiotherapy.
Dr Miniter expressed the view that the applicant would never be fit for completely normal duties. Dr Miniter stated:
“The question will remain as to whether he can be accommodated within the confines of his employment without the need to perform particularly heavy tasks as I do not believe that he will return to normal functional strength. The question as to whether he will pass the physical examination requirements is another matter and this will be determined by independent observation of his functional capacity.”
Dr Miniter was asked whether any further treatment was required which would assist the applicant in recovering from injury and returning to work in his pre-injury role. Dr Miniter responded that there was no further treatment was this stage.

Applicant’s submissions

The applicant submitted that he previously worked in a very physical occupation. Prior to injury, the applicant was very fit and able to complete the basic requirements of his role, including an arduous pack test.
The applicant noted that he had gained 12kg and suffered a significant loss of fitness as a result of the injury. In order to regain his fitness and satisfy the requirements of his job, the applicant had to increase his aerobic capacity.
The applicant noted that he had been seeing an exercise physiologist and various forms of treatment had been paid by the insurer, including the exercise physiology.
The decision to decline the request for an exercise bike was based on the report of Dr Miniter. Dr Miniter had not, however, considered whether an exercise bike was appropriate treatment. Nor did Dr Miniter consider its usefulness in the increasing the applicant’s aerobic fitness. The applicant submitted that Dr Miniter’s report was not of any assistance in relation to the question before the Commission.
The applicant referred to the report of his exercise physiologist, Ms Samanna, and her explanation that an exercise bike would give the applicant the ability to increase his aerobic capacity by working out at a high intensity.
The applicant submitted that as a consequence of the injury to his right arm, his physical capacity had been inhibited. The loss of physical capacity was ancillary to the right arm injury. In order to remedy the ancillary issue, it was reasonably necessary for the applicant to use a bike to increase his capacity. The exercise bike was therefore reasonably necessary medical treatment in the nature of a “curative apparatus”.
The applicant submitted that the treatment was cost-effective and referred to Ms Samana’s evidence as to the appropriateness and effectiveness of the treatment.

Respondent’s submissions

The respondent relied upon the report of Dr Miniter, who said no further treatment was required for the injury. Dr Miniter’s report was prepared in February 2022. Given that the exercise bike was purchased later, this explained why Dr Miniter did not deal specifically with that claim. The exercise bike was not a reasonably necessary expense.
The respondent submitted that the applicant was unlikely to ever be fit for completely normal duties because of his arm condition. The applicant had nonetheless returned to work and there was no claim for weekly compensation.
The respondent noted that the applicant expected to do the arduous pack test in July 2022 when he prepared his statement. No evidence had been provided by the applicant as to the results of the pack test or whether it was performed.
The respondent further submitted that the only person capable of giving evidence as to the effect of having used the exercise bike was the applicant. The applicant’s evidence was silent as to the benefits of the bike and whether it was in fact used.
The respondent noted that the applicant’s expert, Dr Doig, did not deal with the issue and Dr Meads had expressed the view that no further treatment was required. This was consistent with the opinion of Dr Miniter.
In those circumstances, the respondent submitted that the evidence relied upon by the applicant was insufficient to show the Commission that the bike was reasonably necessary as a result of the injury. In the absence of any evidence elaborating on the use of the exercise bike and its actual effect, the Commission would not accept that it was reasonably necessary as a result of the injury.

Applicant’s submissions in reply

The applicant referred to the letter from Ms Samanna to his general practitioner, dated 20 December 2021, and said it confirmed that the applicant had reported a significant decline in his aerobic fitness and was struggling to complete tasks he previously had no difficulty with. Ms Samanna recommended fortnightly exercise physiology.
The applicant reiterated his submission that Dr Miniter only dealt with the right arm but not the ancillary issue of loss of fitness.
Noting that the applicant had returned to work, it could be inferred that his level of fitness had returned to the point where he could undertake the pack fitness test.
The purchase of an exercise bike was a relatively low expense that it was unreasonable for the insurer not to pay for it.

FINDINGS AND REASONS

Section 60 of the 1987 Act relevantly provides:
“(1)    If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b)     any hospital treatment be given, or
(c) any ambulance service be provided, or
(d)     any workplace rehabilitation service be provided,
the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
What constitutes “reasonably necessary” treatment was considered in the context of s 10
of the Workers Compensation Act 1926 in Rose v Health Commission (NSW)[1] where Burke CCJ stated:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[1] (1986) 2 NSWCCR 32 (Rose).
Further, his Honour added:
“1.     Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
His Honour considered the relevant factors relating to reasonably necessary treatment under s 60 of the 1987 Act in Bartolo v Western Sydney Area Health Service[2] and stated:
“The question is should the patient have this treatment or not. If it is better that he has it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.”
[2] [1997] NSWCC 1.

In Diab v NRMA Ltd,[3] Roche DP provided a summary of the relevant principles as follows:
[3] [2014] NSWWCCPD 72.
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose (see [76] above), namely:
(a) the appropriateness of the particular treatment;
(b) the availability of alternative treatment, and its potential effectiveness;
(c) the cost of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”[4]
[4] At [88] to [90].
Deputy President Roche commented further:[5]
“Reasonably necessary does not mean ‘absolutely necessary’ (Moorebank at [154]). If something is ‘necessary’, in the sense of indispensable, it will be ‘reasonably necessary’. That is because reasonably necessary is a lesser requirement than ‘necessary’. Depending on the circumstances, a range of different treatments may qualify as ‘reasonably necessary’ and a worker only has to establish that the treatment claimed is one of those treatments. A worker certainly does not have to establish that the treatment is ‘reasonable and necessary’, which is a significantly more demanding test that many insurers and doctors apply. Dr Bodel and Dr Meakin were both wrong to apply that test.”
[5] At [86].
In considering the applicant’s claim, it is useful to note at the outset that no dispute was raised between the parties that an exercise bike could, in the circumstances of this case, constitute a “curative apparatus” and thereby satisfy paragraph (e) of the definition of “medical or related treatment” in s 59 of the 1987 Act.
Rather, the dispute centred on the question of whether the bike was reasonably necessary as a result of the accepted injury.
There was no suggestion by the applicant that the exercise bike or the use of it was reasonably necessary to treat the humerus fracture or nerve injury at the applicant’s right arm or his neck pain. It is, however, the applicant’s claim that he suffered a consequential weight gain and loss of fitness as a result of the arm injury. The use of the exercise bike was intended to address these consequential conditions and assist the applicant to return to his pre-injury duties.
That the applicant’s pre-injury duties were physical in nature and required him to complete an annual task-based fitness assessment is also not in question. The applicant’s evidence in this regard is confirmed by the medical assessment form attached to the ARD.
The applicant’s evidence as to the impact of the injury on his fitness levels and body weight is supported by the evidence attached to the ARD, including the reports of Ms Samanna, Dr Sajir and Mr Gubbay. The respondent has not challenged the applicant’s assertion that the pain in his arm caused by the work injury and the consequent switch to sedentary duties had a deleterious impact upon the applicant’s physical fitness and body weight.
The applicant has provided evidence that the use of an exercise bike would treat or improve his fitness. Although the applicant might be capable of improving his fitness by other means, for example, walking, Ms Samanna has explained the particular benefit of an exercise bike. Ms Samanna has explained that the bike would permit the applicant to work at a higher intensity and thereby increase his overall aerobic capacity. The applicant resides on a remote rural property and has given evidence that he has no access to a gym.
It appears to have been accepted by those practitioners commenting on the issue that an increased aerobic capacity would be necessary for the applicant to meet the fitness requirements of his pre-injury role.
The material before me indicates that the applicant was motivated to return to work and has been performing suitable duties with the respondent. Despite this, the applicant has expressed a preference to work in his previous physical, outdoor role. The evidence before me indicates that the applicant has always worked in physical roles. I also note the impact of the loss of fitness on the applicant’s mental health described by the applicant’s psychologist, Mr Gubbay.
The respondent relies on Dr Miniter’s report to dispute the claim, as well as Dr Meads’ opinion that no further treatment was required. As noted by the applicant, however, both doctors’ opinions were directed at the applicant’s orthopaedic and neurological conditions as opposed to the undisputed consequential loss of fitness and weight gain. I am not satisfied that the evidence from either doctor assists in a resolution of the dispute currently under consideration.
The respondent further submitted that the applicant had not discharged his evidentiary onus by reference to the fact that no evidence was available as to the applicant’s actual use, or any actual benefit derived from, use of the exercise bike, noting that it had been purchased in March 2022. The respondent also noted that the applicant had not provided any evidence as to whether he completed the arduous pack test or had returned to his pre-injury duties.
It is certainly true that the applicant’s case could have been materially stronger had he or his treating practitioners provided some evidence as to the outcomes achieved by his use of the exercise bike.
I also do not accept the applicant’s submissions that it can be inferred that he passed the test and had returned to pre-injury duties. The most recent certificates of capacity in evidence suggest that the applicant had not returned to pre-injury duties and was working towards permanent modified duties. Dr Miniter and Dr Malhotra have suggested that the applicant may never return to his full pre-injury duties.
I am not satisfied, however, that this omission in the evidence is fatal to the applicant’s case. While the actual effectiveness of the use of the exercise bike would be a relevant consideration, it is not, in itself, determinative.
Applying the authorities above and considering the evidence put before the Commission, I am satisfied that the use of an exercise bike would potentially be effective in arresting or abating the progress of the consequential conditions and remedying them. Given the applicant’s remote location, the impact of the conditions on the applicant’s mental health, his past history of physical, outdoor work and his desire to return to such work, even if it does not entail his full pre-injury duties, I accept that it is reasonable that the treatment be afforded to the applicant.
The applicant’s exercise physiologist, general practitioner and psychologist have all commented favourably on the relevance, appropriateness and potential effectiveness of the use of home exercise equipment such as the exercise bike.
The cost of the bike is relatively modest.
While the applicant could potentially achieve a similar outcome through other means, the particular benefits of an exercise bike over other modalities has been addressed by the applicant’s evidence.
For these reasons, I accept that the provision of an exercise bike is reasonably necessary as a result of the injury on 6 February 2020. There will be an order for the respondent to pay the costs of the exercise bike in accordance with s 60 of the 1987 Act.

[2023] NSWPIC 631

24 November 2023