Eliades and Comcare (Compensation)

[2018] AATA 2576

Eliades and Comcare (Compensation) [2018] AATA 2576 (27 July 2018)

Division:GENERAL DIVISION

File Number(s):      2016/4367

Re:Phillip Eliades

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta
Member L Stephan

Date:27 July 2018

Place:Adelaide

The Tribunal affirms the decision under review.

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Senior Member N A Manetta

CATCHWORDS

COMPENSATION – back injury – lower back pain – gym membership – whether Comcare should pay gym membership fees as reasonable therapeutic treatment – held home exercise regime equally effective – cost of gym membership not reasonable

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, s 16

CASES

Comcare v Watson (1997) 46 ALD 481; 73 FCR 273

REASONS FOR DECISION

Senior Member N A Manetta
Member L Stephan

27 July 2018

1. This is an application by Mr Phillip Eliades seeking a review of the determination by the respondent, Comcare. By its determination, Comcare terminated its payment of fees for Mr Eliades’ membership of “Next Generation”, a gym located in North Adelaide. The membership fees had been paid for a number of years by the respondent pursuant to its obligation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 to pay the reasonable cost of medical treatment obtained by Mr Eliades, an injured employee.  We understand Mr Eliades had had his gym membership fees paid from 2006.  On a review of Mr Eliades’ circumstances, Comcare decided to terminate the payment.  At the hearing before us, Mr Bourne appeared for Mr Eliades; Mr Krupka, for Comcare.

2. Deciding the question afresh on the evidence before us, and in light of s 16, we note that our task is to decide whether the gym membership fees are a cost of medical treatment obtained in relation to the injury suffered by Mr Eliades (being treatment that is reasonable for him to obtain in the circumstances). We note that “medical treatment” includes, by virtue of the definition in s 4, “therapeutic treatment obtained at the direction of a legally qualified medical practitioner”.

   SUMMARY OF CONCLUSION

3. In our opinion, Mr Eliades’ gym membership, even assuming the exercises he undertook there amounted to “therapeutic treatment”, was not “treatment that it was reasonable for Mr Eliades to obtain in the circumstances”.  We shall affirm the decision under review.

4. Below we set out the background facts and our reasons to support the conclusion we have just stated.

   BACKGROUND FACTS

5. Mr Eliades, who is 63, joined the Australian Federal police 1978.  He transferred to Adelaide in 1980.  In 1982, he was a passenger in a car that was struck, unfortunately, from behind.  Mr Eliades suffered severe injury to his back and neck.  Comcare (or its predecessor) accepted its liability for a neck and spinal injury and accepts today that this injury continues to cause Mr Eliades pain and to restrict his mobility.  We note also that Comcare has accepted liability for “the aggravation of a predisposition to anxiety state” with effect, we understand, from 2001.

6. We accept Mr Eliades’ evidence that he derives a benefit from his gym exercises.  We accept the submission put at paragraph [6] of the written submissions filed by Mr Bourne that the benefits include the following:

   “6.1 maintaining a level of fitness and mobility with reduced pain;

   6.2 limiting the need for other symptomatic treatment such as painkilling medication and facet joint injections (the latter being invasive and expensive);

   6.3 management of his depression;

   6.4 minimising the side-effects of the sedentary lifestyle caused by the injury such as weight gain and resultant Type 2 diabetes.”

7. Whilst we accept that the gym exercises Mr Eliades undertakes assist him in the manner we have just set out, we note that the “depression” and Type 2 diabetes” mentioned in paragraph [6.3] and [6.4] of Mr Bourne’s submission are not conditions which are compensable.  Paragraphs [6.1] and [6.2] do relate to Mr Eliades’ compensable condition.

   REASONS

8. In our opinion, however, the critical difficulty Mr Eliades faces in his claim against Comcare is that the evidence before the Tribunal suggests a home-exercise regime could be as effective to reduce pain and aid mobility as the exercises he undertakes at “Next Generation”.  That was certainly the evidence of Dr Munn, an occupational physician, who was called by Comcare.  It was also the position of Dr Meegan, an occupational physician, who was called by Mr Eliades.

9. The two specialists did not suggest that the gym exercises could alter Mr Eliades’ underlying injured physical state, as caused by the 1982 accident.  We do not have any difficulty, however, in finding that the treatment of pain and the enhancement of mobility by treatment (where pain and lack of mobility are the result of a compensable injury) are “therapeutic treatments”.  We need only cite Comcare v Watson (1997) 73 FCR 273 at 276 in this regard.

10. One question we do have is whether a person using a gym unsupervised (albeit with the right to ask for assistance from instructors as and when their assistance is required) can be said to be “obtaining treatment”, which is the statutory test in s 16. This raises the difficult question of what “obtaining treatment” means in the context of unsupervised exercise programs. Furthermore, where, as was the case here, a medical practitioner recommends to a patient that he attend a gym but does not formally “prescribe” it, does not liaise with the gym or monitor his or her patient’s progress otherwise than by hearing oral reports from the patient, we query whether the gym exercises can be said to be “therapeutic treatment obtained at the direction of a legally qualified medical practitioner” as required by the definition in s 4. We did not hear argument on these questions, and we do not express any conclusion. We shall assume in Mr Eliades’ favour that the gym exercises do amount to a form of “therapeutic treatment”.

11. As we have said, however, the main difficulty for Mr Eliades is that Dr Munn’s evidence, which we accept, suggests that the benefits of the gym membership could be replicated at home with a tailored exercise regime.  We do not dispute that Mr Eliades may not have room at home to accommodate large pieces of equipment so as to be able to replicate the gym exercises.  But we do not believe that is required, or even necessarily desirable, in Mr Eliades’ case in order that he obtain pain-relief and mobility-enhancing benefits that approximate the benefits he obtains from “Next Generation”.  

12. We do not understand Dr Meegan, who was called by Mr Eliades, to dispute this.  Dr Meegan did note, as a matter of practicality, that someone in Mr Eliades’ position, who has had access to gym membership for many years might find it difficult, without assistance, to devise for himself a home-exercise regime that would yield similar benefits to those obtained from a long-practised gym routine.  We do not disagree with that assessment.  We would encourage Mr Eliades and Comcare to speak with a view to Mr Eliades receiving instruction at home in respect of an appropriate range of exercises that would give him pain relief and greater mobility.

13. Notwithstanding Dr Meegan’s concerns, for us the critical question is, in our opinion, whether or not Mr Eliades’ gym-membership cost can be said to be “reasonable” when a much cheaper option for Mr Eliades to pursue is a home-exercise regime that will give him similar pain relief and mobility enhancement.  We do not believe Mr Eliades’ gym membership (even on the assumption that Mr Eliades’ use of the gym amounts to therapeutic treatment obtained by him at the direction of his medical practitioner) is “reasonable” treatment for Mr Eliades to obtain in the circumstances.  We do appreciate that there can be some motivational deficits associated with home exercise; and we appreciate that the gym at North Adelaide (which is apparently pleasant and offers an attractive exercise and recreational environment) is part of Mr Eliades’ social life.  Nevertheless, the gym membership was not demonstrated on the evidence to us to be “reasonable” in Mr Eliades’ circumstances given the possibility of an equivalent home- exercise regime.

    FORMAL DECISION

14. It follows, in our conclusion, that Mr Eliades’ gym membership falls outside s 16 and Comcare has no liability Comcare to pay for it. We shall affirm the decision under review.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta, Member L Stephan

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Administrative Assistant

Dated: 27 July 2018

Date(s) of hearing:	6 & 7 June 2018
Date final submissions received:	10 July2018
Advocate for the Applicant:	Mr T Bourne
Solicitors for the Applicant:	Bourne Lawyers
Counsel for the Respondent:	Mr B Krupka
Advocate for the Respondent:	Ms P Heffernan
Solicitors for the Respondent:	Australian Government Solicitor