Howard and Comcare
[2003] AATA 1316
•22 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1316
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/400
GENERAL ADMINISTRATIVE DIVISION )
Re NEIL HOWARD Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date22 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ....................(Sgd).....................
O Rinaudo
Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – reimbursement of home gym expenses – whether applicant entitled to have expenses reimbursed
Safety, Rehabilitation and Compensation Act 1988, s 16 and s 39
Re Collins and Comcare (AAT 10452, 22 September 1995)
Thiele v The Commonwealth (1990) 22 FCR 342REASONS FOR DECISION
22 December 2003 Mr O Rinaudo, Member Decision Under Review
1. The applicant seeks review of the decision made by the respondent to not reimburse him for the cost of a home gym which the applicant purchased from Amart All Sports on 5 September 2002 at a cost of $1,299. The total cost of $1,419 included delivery charge.
Issue Before the Tribunal
2. The issue for the Tribunal is to decide whether the applicant is entitled to receive reimbursement for the cost of the home gym under section 16 or section 39 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
3. On 20 September 1995 (T8), the respondent accepted liability for the applicant’s undated claim (T5) for musculo-ligametous back pain with a deemed date of injury being 10 October 1988. The applicant suffered the injury to his back whilst “practis[ing] parachute jumping ex Swift Eagle”.
Evidence
4. The applicant gave evidence at the hearing although this consisted mainly of cross-examination by Counsel for the respondent. Evidence was also obtained from Dr Winstanley and Dr Morris, both by telephone. In addition, the following exhibits were tendered:
Exhibit 1 “T” Documents
Exhibit 2 Report of Dr Peter Winstanley dated 22 May 2002
Exhibit 3 Report of Dr Peter Winstanley dated 12 August 2003
Exhibit 4 Applicant’s Statement dated 30 July 2003Exhibit 5 Report of Dr John Morris dated 2 October 2003
5. In cross-examination the applicant confirmed that there was a fitness centre approximately 15 minutes drive from his residence. He stated that he would be unable to get a lift to this fitness centre. He stated that he was not now, nor had he been, in a relationship with a female. Accordingly, she was not able to give him a lift to the fitness centre.
6. The applicant acknowledged that there was a pool close by.
7. The applicant stated that because of his schizophrenia and post traumatic stress disorder he does not want to go to a public gym. He stated he considered that he knew he would have a problem with his mental health if he had to go to a public gym.
8. The applicant acknowledged that he had been assessed by Craig Lam, Physiotherapist (T28/73) and that Mr Lam had developed a program that was intended to increase the applicant’s range of movement, strength, flexibility and control of pain. The applicant acknowledged that, on 20 September 2002, Mr Lam had received approval for ten treatments to be conducted until 20 March 2003. The applicant stated that he had not had these treatments because he did not believe that Mr Lam was up to the standard of his previous physiotherapist. They had had an argument and he had not been back to see Mr Lam.
9. A Notification of Treatment Questionnaire was completed by Dr Prinsloo (T28/72). The applicant was asked if he had written in the words “personal gym” where they appear in the middle of the document. The applicant acknowledged that he had written it in but had confirmed that Dr Prinsloo was agreeable with this.
10. The respondent’s Counsel referred to the document at T35/81 where Dr Prinsloo had confirmed that:
“I cannot recall altering the form, and it doesn’t seem that ‘personal gym’ was written in my handwriting.”
11. The applicant would not respond to questions about this issue.
12. The Tribunal notes that, whilst it is satisfied that nothing sinister turns on the inclusion of the words “personal gym” in the Notification of Treatment Questionnaire (T28/72), it is an example of the applicant’s determination to undertake some physical exercise which will strengthen his back and relieve pain.
13. The applicant was then asked to respond to matters set out in a letter from Rebecca Tweedy, Injury Management Adviser at T37/83. The applicant stated that he did not like the ideas set out in this letter and considered that he “could do it all on his own”.
14. In cross-examination, Dr Winstanley acknowledged that the matters referred to in the letter at T37/83 “would be acceptable”.. He also acknowledged that the applicant would need to be supervised and confirmed the applicant must be supervised and have guidance when exercising.
15. Dr Winstanley also agreed with the matters set out in Mr Morris’ report.
16. Dr Morris in examination-in-chief confirmed that his report was true and correct and that he had not changed his view in respect of it.
17. The respondent asked Dr Morris if he had mentioned ankle injuries during the consultation. Dr Morris replied that he did. There was no record that the applicant had mentioned his ankle injuries nor could be recall it.
Legislation
18. Section 16 of the Act provides that:
“(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.”
19. “Medical treatment” is defined in subsection (4)(1) of the Act in the following terms:
“medical treatment means:
(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
…
(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
…
(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
(g) treatment and maintenance as a patient at a hospital; or
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise;”
20. Section 39 of the Act provides inter alia:
“(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:
…
(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.”
Discussion and Decision
21. It is appropriate to deal with the issue of whether the applicant is entitled to recover the cost of the home gym under section 16 of the Act.
22. In the decision of Re Collins and Comcare (AAT 10452, 22 September 1995), Senior Member Allen, in accepting the rationale, and adopting the reasoning, of Hill J in Thiele v The Commonwealth (1990) 22 FCR 342. When speaking about a swimming pool installed in order to carry out hydrotherapy, his Honour said (at 347):
“There is, however, in my opinion, a real difficulty in regarding the pool itself as being treatment of the part of the treatment rather than as being the place at which the treatment is carried out.”
23. As in the case of Collins the apparatus here is not required to cure the disease but is a “preventative or maintenance measure”. The Tribunal therefore follows the cases referred to in not accepting that the applicant’s request for the home gym. The applicant is not entitled to recovery of the sum spent on the home gym pursuant to section 16 of the Act. The home gym cannot be classed as medical treatment.
24. Having regard then to section 39, the Tribunal notes the report of Dr Winstanley dated 12 August 2003 (Exhibit 3) in which the doctor states:
“In my opinion, this patient would benefit from the use of a home gymnasium to allow him to improve his muscle strength and capacity. Attending the gymnasium on a regular basis is complicated by his schizophrenia and PTSDE syndrome. There is no indication he requires further investigation or surgical treatment for his condition.”
25. Dr Morris, in his report dated 2 October 2003 (Exhibit 5), reports in response to the question at 3.3 on page 4 of his report:
“With regard to treatment of Applicant’s condition:
(a) What form of treatment would you recommend?
The treatment I would recommend would be walking, keeping his abdominal and back muscles tight.
…
(d)What benefit do you expect that Applicant will receive from such treatment?
The benefit would be to strengthen his abdominal and back muscles.”
and at 3.4:
“Whether the use of a home gym is reasonably required by the Applicant having regard to the nature of his condition. Please provide reasons.
While a home gym does help build up muscles, there are plenty of other ways of doing it. As I mentioned, tall walking or walking with his abdominal and back muscles tight would do just as well. Swimming will also help, as would floor exercises. The use of a gym if not properly supervised with people with back problems can actually cause them further pain and suffering.”
and at 3.5:
“If you do consider that a home gym is reasonably required, what restrictions would you place and what degree of supervision would you recommend.
I would not consider that a home gym was reasonably required for a person with back pain. While it may be of some benefit, there are plenty of other ways the abdominal and back muscles can be strengthened.”
and at 3.6:
“What is your prognosis in relation to the Applicant’s condition?
The prognosis has to be guarded. Mr Howard has now experienced back pain for at least seven or eight years. I consider the chances of a sudden remission will not be very high.”
26. It should be noted that Dr Winstanley was, in cross-examination, in agreeance with the comments of Dr Morris.
27. It is useful to set out in full the contents of a letter by Rebecca Tweedy, Injury Management Adviser dated 10 February 2003 (T37/83). She states:
“…In general we do not approve large pieces of home gym equipment due to the following reasons.
Firstly, our guidelines allow a 6 month gym or pool pass approval which must be set-up and supervised by a physiotherapist or exercise physiologist. This allows monitoring and progression of the exercise program. For clients who are unable to attend a gym, we are able to organise an exercise physiologist to see them at home to set up a program. At the end of the 6 month program, the client is responsible for continuing a self-maintenance program. In Mr Howard’s case, the physiotherapist could organise an ongoing home program with some simple equipment. A low back pain home exercise program would include mainly floor exercises with the possibility of a Swiss Ball and small hand/leg weights.
Secondly, the provision of large pieces of home gym equipment opens up legal implications if someone was to injure themselves while using the equipment. Often home gym equipment has many moving parts and weight attachments, increasing the likelihood of injuries. Unlike a Fitness centre, the exercise program is not supervised and equipment many not be regularly checked or maintained. These issues have important legal ramifications. …”
28. It seems clear from the medical reports that some ongoing exercise program would be beneficial to the applicant. This appears to include exercises which would strengthen the applicant’s back and Dr Morris confirms that the benefit would be to strengthen the applicant’s abdominal and back muscles.
29. The Tribunal is reasonably satisfied that this exercise program should take place in the applicant’s home. In reaching this view the Tribunal is reasonably satisfied, although the only evidence in this regard was the evidence of the applicant, that the applicant’s mental state conditions would preclude him from going to a public fitness centre.
30. The question for the Tribunal is whether it is reasonable for the applicant to embark on such exercise program using the home gym purchased by him without supervision or guidance.
31. It is clear from the medical evidence, and in particular Dr Winstanley’s concurrence in cross-examination with the assessment of Dr Morris, that supervision and guidance are essential in any ongoing exercise program for the applicant.
32. Accordingly, the Tribunal considers that the respondent has been entirely reasonable in proposing the treatment program set out in the letter of Ms Tweedy above.
33. It is unreasonable, in accordance with the provisions of section 39 of the Act, that the applicant should be entitled to the reimbursement of the cost of the home gym as there is no evidence that would persuade the Tribunal that the provision of such a home gym would be reasonable within the meaning of the section of the Act.
34. In fact, the Tribunal is satisfied with the evidence provided by Dr Morris that the unsupervised use of such a gym may have a detrimental effect on the applicant.
35. Clearly, the appropriate time to determine if a home gym was required in total or in part would be after an appropriate assessment had been done by a physiologist as suggested by Ms Tweedy.
36. Accordingly, the applicant is not entitled to receive compensation for the home gym under section 39 of the Act as the Tribunal finds that a home gym is not reasonably required by the applicant.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDate of Hearing 1 December 2003 (at Maroochydore)
Date of Decision 22 December 2003The Applicant appeared in person
Counsel for the Respondent Mr C J Clark
Solicitor for the Respondent Sparke Helmore
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