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

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.
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
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.
Below we set out the background facts and our reasons to support the conclusion we have just stated.
BACKGROUND FACTS
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.
We accept Mr Eliades’ evidence that he derives a benefit from his…

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 Eliades and Comcare (Compensation)

Details

AGLC: Eliades and Comcare (Compensation) [2018] AATA 2576
Case: [2018] AATA 2576
Decision Date: 27 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Eliades against a decision by Comcare regarding the payment of gym membership fees. Mr Eliades, who sustained a severe neck and spinal injury in a 1982 motor vehicle accident, sought reimbursement for gym membership costs, arguing they constituted reasonable therapeutic treatment for his ongoing pain and mobility restrictions. Comcare had accepted liability for the injury and its consequences. The Administrative Appeals Tribunal was required to determine whether the gym membership fees were a reasonable cost of medical treatment obtained in relation to Mr Eliades' compensable injury.

The Tribunal considered whether the gym exercises constituted "therapeutic treatment" and, if so, whether they were "reasonable for Mr Eliades to obtain in the circumstances." While accepting that Mr Eliades derived benefit from his gym exercises, particularly in maintaining fitness, mobility, and reducing pain, the Tribunal noted that some of the stated benefits, such as management of depression and Type 2 diabetes, related to non-compensable conditions. The core of the Tribunal's reasoning focused on the evidence presented by both Comcare's and Mr Eliades' occupational physicians, who indicated that a home-exercise regime could be equally effective in reducing pain and aiding mobility as the exercises undertaken at the gym.

The Tribunal found that, even assuming the gym exercises qualified as "therapeutic treatment," the cost of the gym membership was not reasonable in the circumstances. This conclusion was primarily based on the availability of an equally effective alternative in the form of a home-exercise regime, as supported by expert medical evidence. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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