Chalfont and Comcare (Compensation)

[2016] AATA 1081

Chalfont and Comcare (Compensation) [2016] AATA 1081 (23 December 2016)

Division	GENERAL DIVISION
File Number	2015/5291
Re	Jeffrey Chalfont
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Member D K Grigg
Date	23 December 2016
Place	Brisbane

The Tribunal affirms the decision under review.

.........................[Sgd]...............................................

Member D K Grigg

CATCHWORDS

COMPENSATION – Commonwealth employees – claim for ‘medical treatment’ - accepted compensable injury - whether respondent liable for applicant’s exercise shoes - whether exercise footwear is medical treatment - tear of lateral cartilage - meniscus of left knee – decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 14, 16, 39

REASONS FOR DECISION

Member D K Grigg

23 December 2016

INTRODUCTION

1. Mr Chalfont has an accepted compensable injury of tear of lateral cartilage or meniscus of left knee (“Knee Injury”).[1] The Knee Injury was sustained in 1993.[2]

   [1]           Exhibit 2, T Documents, ST12, page 22.

   [2]           Exhibit 2, T Documents, ST5, page 10.

2. Mr Chalfont has claimed that “exercise footwear” is “medical treatment” for the purposes of the definition of “medical treatment” in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) and that he is therefore entitled to be compensated for their purchase under s 16(1) of the Act, or alternatively, under s 39 of the Act.

3. Comcare originally accepted liability to pay compensation for two pairs of sports shoes in 1995.[3] Between 1995 and 2013 there have been a series of applications and determinations regarding whether or not to compensate Mr Chalfont for exercise shoes. Comcare has, in the past, compensated Mr Chalfont for exercise shoes on numerous occasions.[4] This history is set out in Comcare’s Statement of Facts, Issues and Contentions dated 8 September 2016 (Exhibit 5), at paragraphs 3.5 to 3.10 (“SFIC”).[5]

   [3]           Exhibit 1, T Documents, T7, page 48.

   [4]           Exhibit 1, T Documents, T7, page 48; T12, page 55; T19.1, page 66; T19.3, page 69; T23.1, pages

   83-90.

   [5]           See Exhibit 1, T Documents, T7 (page 48), T8 (page 49), T10 (page 52), T12 (page 55), T23.1

   (pages 83-90) and T18 (page 63).

4. Mr Chalfont again claimed compensation for exercise shoes on 21 January 2015.[6] Compensation was denied by Comcare on 11 August 2015[7] and Mr Chalfont sought reconsideration.[8]

   [6]           Exhibit 1, T Documents, T21, pages 72-73.

   [7]           Exhibit 1, T Documents, T22, pages 74-75.

   [8]           Exhibit 1, T Documents, T23, pages 79-82.

5. In the reviewable decision dated 25 September 2015 it was decided that exercise footwear is not “therapeutic treatment” which improves the compensable condition.[9] It was determined that the “aid” cannot just be palliative or preventative. The Review Officer determined the treatment must be therapeutic and improve the compensable condition and that there was no medical justification or opinion to support Mr Chalfont’s claim.[10]

   [9]           Exhibit 1, T Documents, T24, pages 93-96, Reviewable Decision dated 25 September 2015.

   [10]          Exhibit 1, T Documents, T24, pages 93-96, Reviewable Decision dated 25 September 2015.

6. Mr Chalfont has sought a review of that decision by this Tribunal.[11]

   [11]          Exhibit 1, T Documents, T1, pages 1-40, Application for Review of Decision dated 6 October 2015.

   ISSUES FOR DETERMINATION

7. The issue for determination are whether Mr Chalfont is entitled to compensation for exercise shoes under:

   (a)s 16 of the Act; and/or

   (b)s 39 of the Act:

8. A consideration of whether Mr Chalfont is entitled to compensation under s 16 of the Act involves determining whether:

   (a)the exercise shoes are a form of “medical treatment” within s 4(1) of the Act, and if yes;

   (b)the medical treatment was obtained in relation to the Knee Injury; and

   (c)the medical treatment was reasonable in the circumstances.

9. A consideration of whether Mr Chalfont is entitled to compensation under s 39 of the Act involves determining whether:

   (a)Mr Chalfont is undertaking, or has undertaken, a rehabilitation program (or has he been assessed as not capable of undertaking such a program); and

   (b)the shoes are an aid or appliance within s 39 of the Act and reasonably required having regard to the nature of his impairment or the requirements of the rehabilitation program.

10. Comcare, in its SFIC, originally also contended that Mr Chalfont does not continue to suffer the effects of the Knee Injury,[12] but at the hearing Counsel for Comcare indicated that this was no longer an issue.

    [12]          Exhibit 5, para 2.1.

11. However, whether or not Mr Chalfont continues to suffer the effect of the Knee Injury is directly relevant to determining if the claimed exercise shoes constitute medical treatment, or an aid or appliance, reasonably obtained in relation to the Knee Injury (as is required by ss 16 and 39 of the Act).

12. If the claimed exercise shoes are not medical treatment required for the compensable Knee Injury, Comcare will not be liable to compensate Mr Chalfont for the shoes.

    LEGISLATIVE REQUIREMENTS

13. The right to compensation for an employee under the Act is conferred by s 14(1) which provides that Comcare is:

    … liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

14. “Injury” is defined in s 5A(1) to mean, so far as this case is concerned:

    … an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment.

15. Section 16 of the Act deals with compensation for out of pocket costs of medical treatment. Section 16(1) provides:

    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.

16. The compensable costs of the medical treatment concerned under s 16 are limited to the cost of medical treatment which was reasonable for the employee to have obtained in the circumstances.

17. Section 4(1) defines "medical treatment " to mean, relevantly:

    (b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner;

    (c)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

    (f)the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or

    (h)…curative apparatus…

18. Section 39 provides, relevantly:

    (1)  Where:

    (a)an employee suffers an injury resulting in an impairment; and

    (b)the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;

    the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:

    (c)…;

    (d)…; or

    (e)any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;

    being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program.

    MEDICAL REPORTS

19. As the Knee Injury was sustained 23 years ago in 1993, there are many medical reports detailing the history of Mr Chalfont’s condition and the treatment recommended and provided.[13]

    [13]          Exhibit 2, T Documents, ST4 (page 9), ST5 (page 10), ST6 (page 11), ST9 (page 16), ST10 (page

    17), ST11 (pages 18-21), ST17 (pages 27-28), ST20 (pages 33-40), ST21 (pages 41-44), ST21.1 (pages 45-47), ST24 (page 51).

20. It is worth setting out the various treating and examining medical practitioners’ reports and observations as they provide guidance of the progress of Mr Chalfont’s Knee Injury and sheds light on the extent to which it can be said that Mr Chalfont still suffers the effects of the Knee Injury today.

21. I note the following evidence:

    ·On 4 November 1993 results of a scan of Mr Chalfont’s left knee indicated that there was degenerative osteoarthritis.[14]

    [14]          Exhibit 2, T Documents, ST4, page 9.

    ·On 25 November 1993, Mr Chalfont’s Knee Injury had not recovered 5 weeks after the date it was sustained, so Dr Ashwell, orthopaedic surgeon, recommended performing an arthroscopy.[15] The arthroscopy was performed on 1 December 1993 and Dr Ashwell reported that Mr Chalfont had “an anterior horn tear of the lateral meniscus… [and] grade 1 chondral damage on the lateral femur and the patella”.[16] Dr Ashwell excised the meniscal tear.

    [15]          Exhibit 2, T Documents, ST5, page 10.

    [16]          Exhibit 2, T Documents, ST6, page 11.

    ·On 21 April 1994, Dr Ashwell reported Mr Chalfont was still experiencing anterior knee pain and will need to use “soft inner soles in his shoes”.[17]

    [17]          Exhibit 2, T Documents, ST10, page 17.

    ·On 1 July 1994 Dr Cameron, surgeon, reported that Mr Chalfont’s reported “current symptoms appear to be now largely due to [his pre-existing] degenerative osteoarthritis” and that “physical examination…revealed moderate restriction of knee movement, possibly obscured by a degree of exaggeration”.[18]

    [18]          Exhibit 2, T Documents, ST11, pages 20-21.

    ·On 9 February 1995, Alison Thomas, physiotherapist, stated Mr Chalfont experienced significant knee dysfunction. Ms Thomas indicated it would be beneficial for Mr Chalfont to have adequate supportive footwear - good quality walking shoes - to assist him to continue his walking program as part of his rehabilitation.[19]

    [19]          Exhibit 1, T Documents, T3, page 42.

    ·On 22 February 1995, Dr MacDonald, general practitioner, stated that non-slip shoes with arch supports such as jogging shoes would assist Mr Chalfont in undergoing a graduated exercise programme. Dr MacDonald stated these shoes would lessen some impact being transmitted to Mr Chalfont's knees with normal use.[20]

    [20]          Exhibit 1, T Documents, T4, page 43.

    ·On 21 April 1995 Dr Hodgkinson, orthopaedic surgeon, reported that:[21]

    [21]          Exhibit 2, T Documents, ST21, page 44.

    oMr Chalfont “does not have any significant impairment in the function of [his] left knee”; and

    oHe “was unable to find any objective evidence sufficient to account for his complaints of symptoms”.

    ·A joint panel, constituting Dr Dowda (Occupational Physician) and Dr Hodgkinson (Orthopaedic Surgeon) examined Mr Chalfont on 19 April 1995 and reported that:[22]

    [22]          Exhibit 2, T Documents, ST21.1, page 47.

    oPhysically, recovery of the left knee condition should be complete, but there may be other factors contributing to his presentation of symptoms which might well be better sorted out by psychiatric consultation.

    ·In a report dated 29 August 1995, requested by Comcare, Dr MacDonald stated Mr Chalfont had been advised to wear shoes with features including an energy absorber sole, arch support, rocker heel and firm lace up padded top consistent with jogging shoes. Dr MacDonald stated that Mr Chalfont required such a shoe for normal wear. Dr MacDonald reported it was likely that Mr Chalfont required two pairs, one for exercising and one for usual wear. However, he said he was “unable to form an opinion to the time span that such a pair of shoes would last”.[23]

    [23]          Exhibit 1, T Documents, T6, pages 46-47.

    ·On 29 August 1995, Dr MacDonald recommended Mr Chalfont use jogging shoes for everyday use and exercise to assist his knee and back pain.[24]

    [24]          Exhibit 1, T Documents, T9, page 51.

    ·On 21 September 1995, Dr John Mulholland, radiologist, stated that a bone scan and an x-ray of Mr Chalfont's left knee:[25]

    [25]          Exhibit 2, T Documents, ST26, page 54.

    o[was] consistent with a low, grade arthritic process. This could reflect a previous injury to the knee or a response to altered weight-bearing.

    o[showed] very minimal degenerative osteophyte formation …in relation to the tibio-femoral articulation.

    o[found] a bipartite right patella.

    ·On 4 March 1996 Dr Brooks, Orthopaedic Surgeon, reported that:[26]

    [26]          Exhibit 2, T Documents, ST29, page 63.

    othe “degree of pain… which Mr Chalfont describes is most unusual, considering the relatively mild pathology present…While Mr Chalfont does have some mild degenerative change affecting his left patella-femoral joint…[this] condition [is] not a result of his employment…

    ·On 21 May 1997, Dr MacDonald stated that Mr Chalfont had not improved and had a continuing need of footwear incorporating arch support, energy absorbent soles and a rocker heel.[27]

    [27]          Exhibit 1, T Documents, T13, page 56.

    ·On 17 December 1997, Dr John Ashwell, orthopaedic surgeon, reported Mr Chalfont suffered from patella-femoral chondral damage to both knees, more marked on the right side, and pain from bipartite patella on the right knee. Dr Ashwell noted that since his last examination, Mr Chalfont had had about 12 falls. Dr Ashwell stated that Mr Chalfont reported intermittent right anterior knee pain and difficulty with stairs but also had constant pain in his left knee with catching. Dr Ashwell recommended an exercise program.[28]

    [28]          Exhibit 1, T Documents, T14, page 57.

    ·On 5 February 1998 Dr Ashwell reported that Mr Chalfont has evidence of chondral damage in both knees and recommended continuing with an exercise program, swimming and occasional anti-inflammatory medication.[29]

    [29]          Exhibit 1, T Documents, T15, page 58.

    ·In a treatment review plan completed on 16 July 2001, Dr Akbar Ghani, general practitioner, recommended the following treatment:

    oTENS machine for pain relief, analgesics, anti-depressants, anti-hypertension and nonsteroidal anti-inflammatory drugs.

    Dr Ghani also recommended Mr Chalfont continue exercises but did not specifically mention the need for special shoes.[30]

    ·In a treating doctor's report dated 17 September 2003, requested by Comcare, Dr Ghani reported Mr Chalfont suffered from osteoarthritis of the left knee, osteoarthritis of the spine, diverticulitis and hypertension. Dr Ghani stated Mr Chalfont experienced pain and difficulty walking. Dr Ghani did not mention a need for shoes.[31]

    ·On 20 January 2009, Dr Ian Cappe, radiologist, stated that an x-ray of Mr Chalfont's left knee demonstrated “minimal osteophytes off the margins of the intercondylar notch. No joint space narrowing seen. No joint effusion detected. No other abnormality.”[32]

    ·On 30 January 2009, Dr Rohit Singh, radiologist, stated that an MRI of Mr Chalfont's left knee:[33]

    owas consistent with mucoid degeneration,

    odemonstrated no meniscal tears; and

    odemonstrated some thickening with low signal within the caudal half of the lateral collateral ligament, which may represent previous sprain or partial tear.

    [30]          Exhibit 2, T Documents, ST44, page 116.

    [31]          Exhibit 1, T Documents, T1, pages 34-39.

    [32]          Exhibit 2, T Documents, ST45.1, page 119.

    [33]          Exhibit 2, T Documents, ST45.2, page 120.

    EVALUATION

22. Mr Chalfont’s Knee Injury was repaired during an arthroscopy in November 1993, approximately 5 weeks after the date the injury was sustained. At the same time x-rays and scans of Mr Chalfont’s left knee showed signs of degenerative osteoarthritis.

23. In June 1994, it was an orthopaedic surgeon’s opinion that any ongoing symptoms described by Mr Chalfont appeared to be now largely due to his pre-existing degenerative osteoarthritis not the compensable Knee Injury.

24. Nearly a year later another orthopaedic surgeon was unable to find any objective evidence sufficient to account for his complaints of symptoms.

25. A Joint Panel constituting Dr Dowda (Occupational Physician) and Dr Hodgkinson (Orthopaedic Surgeon) examined Mr Chalfont on 19 April 1995 and reported that:[34]

    Physically, recovery of the left knee condition should be complete, but there may be other factors contributing to his presentation of symptoms which might well be better sorted out by psychiatric consultation

    [34]          Exhibit 2, T Documents, ST21.1, page 47.

26. X-rays taken in 1995 indicated that Mr Chalfont had low grade arthritis.

27. In 1996 another orthopaedic surgeon opined that Mr Chalfont had mild degenerative change affecting his left patella-femoral joint which was not related to his Knee Injury.

28. Thirteen years later, in 2009, x-rays again indicated no abnormality other than some minimal arthritis.[35]

    [35]          Exhibit 2, T Documents, ST45.1, page 119.

29. There is no x-ray or scan evidence provided since 2009.

30. The last time it was suggested by a physiotherapist or orthopaedic surgeon that Mr Chalfont should use exercise shoes dates back to the period between 1995 to 1997. That is 19 years ago.

31. The only other evidence in support of Mr Chalfont’s claim that he continues, in 2015 and now, to suffer the effects of his compensable Knee Injury, such that he requires two pairs of exercise shoes comes from Dr Lai, Mr Chalfont’s general practitioner.

32. However, Dr Lai described Mr Chalfont’s condition in 2011 as “degenerative meniscus of the left knee” not “anterior horn tear of the lateral meniscus” as diagnosed and excised by Dr Ashwell in 1993. Dr Lai recommended therapeutic treatment including NSAIDs for knee pain but made no mention of the compensable Knee Injury or shoes or a treatment related exercise program.[36]

    [36]          Exhibit 1, T Documents, T1, page 22.

33. In 2012 Dr Lai’s clinical notes record that “he can flex his knee more than 50 degree to horizon”.[37]

    [37]          Exhibit 2, T Documents, T47, page 145.

34. In 2013 when asked by Comcare[38] what conditions could be causing Mr Chalfont’s need for exercise shoes Dr Lai reported that:

    The “only possible condition that could be [linked] with [Mr Chalfont’s] requirement for [a] special shoe is that he had damage to his left lateral meniscus [i.e. his Knee Injury], and the [possibility] of development of arthritis” (my emphasis).

    Dr Lai “suggested” Mr Chalfont “wear any comfortable shoes when he walks. As would anyone with and without any joint damage”.[39]

    Given this statement it can be inferred that the exercise shoes were not necessarily medical treatment obtainable for the compensable Knee Injury.

    [38]          Exhibit 1, T Documents, T16, pages 59-61, Letter from Comcare to Dr Lai dated 19 November 2013.

    [39]          Exhibit 1, T Documents, T17, page 62.

35. A review of Dr Lai’s clinical records of November 2013 indicates that Mr Chalfont asked him to write another letter to say he needs two pairs of shoes.[40] This is hardly the exercise of Dr Lai’s medical opinion. However, Dr Lai’s report to Comcare on the same day says that Mr Chalfont’s Knee Injury had not changed since his last examination and Mr Chalfont “therefore [still] needs 2 pairs of walking shoes per year”.[41] This statement however has to be read in light of Dr Lai’s earlier comments that everyone should wear comfortable shoes when walking and that it is only “possible” that the Knee Injury was the reason he requires exercise shoes.

    [40]          Exhibit 2, T Documents, T47, page 136.

    [41]          Exhibit 9, Letter from Dr Lai to Comcare dated 13 June 2014.

1. On 21 January 2015 Dr Lai reported that Mr Chalfont required approved exercise shoes due to his knee surgery in 1993.[42] Again, this is inconsistent with his earlier statements and the most recent x-rays and orthopaedic specialist reports.

   [42]          Exhibit 1, T Documents, T21, pages 72-73.

2. There is insufficient medical evidence to support an argument that Dr Lai’s comments in 2015 relate to the compensable Knee Injury or more importantly that would support an argument that Mr Chalfont still suffers effects from the compensable Knee Injury as opposed to his osteoarthritis. Whereas, a finding that any effects suffered by Mr Chalfont in relation to his left knee are due to arthritis alone is supported by Dr Lai’s earlier reports and comments and the medical reports referred to in paragraph 17.

3. Further, the practitioners who recommended shoes with arch supports back in 1995 to 1997 did not distinguish between the need for the shoes in relation to Mr Chalfont’s arthritis or his compensable Knee Injury.

4. Neither Comcare nor Mr Chalfont called Dr Lai to give evidence.

5. Mr Chalfont gave evidence that he was just doing what he had been advised. Mr Chalfont argued his treatment had not changed so why should he not continue to need shoes as per his previous requests. He says the shoes help to alleviate his pain. This may be the case, but it is not clear that his pain is caused by the original compensable injury. In fact the medical reports and evidence outlined above in paragraph 17 indicate that it is highly unlikely to be cause.

6. Mr Chalfont was cross-examined at the hearing in relation to how often and how far he walks. Mr Chalfont gave evidence that:

   ·He walks three times a day on flat ground.

   ·He now walks approximately nine kilometers per day although he could not be precise.

   ·How far and how often he goes for walks depends on the level of pain.

7. It was put to Mr Chalfont that the only medical evidence of how long he can walk for comes from reports of Dr Ashwell. Dr Ashwell reported in December 1997 that Mr Chalfont told him “he [was] able to walk a distance”.[43] In February 1998 Dr Ashwell reported that Mr Chalfont told him “that for 1 day a week he can walk about 2 kms”. [44]

   [43]          Exhibit 1, T Documents, T14, page 57.

   [44]          Exhibit 1, T Documents, T15, page 58.

8. It was submitted by Comcare that Dr Ashwell’s report was a more accurate reflection of the extent of Mr Chalfont’s walking and therefore he cannot possibly need two pairs of shoes per year.

9. There is no corroborating evidence of Mr Chalfont’s current walking regime. However, if what Mr Chalfont says is to be believed, it would support a finding that he is no longer suffering the effects of the compensable Knee Injury.

10. I am not satisfied on the evidence that Mr Chalfont’s claimed treatment is for his accepted Knee Injury. Therefore, Comcare is not liable to compensate Mr Chalfont for exercise shoes under s 16 of the Act for exercise shoes.

    Section 39

11. There are three relevant elements to s 39:

    (a)Mr Chalfont must suffer from an injury resulting from an impairment;

    (d)Mr Chalfont must be undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program; and

    (e)The cost to be compensated must be in relation to an aid or appliance for the use of Mr Chalfont and reasonably required by him, having regard to the nature of the impairment and, where appropriate, the requirements of the rehabilitation program

12. In relation to the first element, I am not satisfied on the evidence that Mr Chalfont continues to suffer effects from the compensable Knee Injury.

13. The second element is satisfied here because Mr Chalfont has been assessed as being not capable of undertaking a rehabilitation program.[45]

    [45]          Exhibit 12.

14. In relation to the third element, I have found that there is insufficient evidence to determine that Mr Chalfont is still suffering from the effects of the Knee Injury. It follows therefore that the exercise shoes are not reasonably required.

15. Therefore, Comcare is not liable to compensate Mr Chalfont for exercise shoes under s 39 of the Act.

    CONCLUSION

16. For the above reasons, the decision under review, being the decision of Comcare made on 25 September 2015 is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate

Dated 23 December 2016

Date of hearing	15 November 2016
Applicant	By phone
Respondent	In person
Counsel for the Respondent	Mr Ben Dube