Kevin Matthews and Telstra Corporation Limited
[2014] AATA 251
[2014] AATA 251
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1464
Re
Kevin Matthews
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 29 April 2014 Place Adelaide The decision under review is affirmed.
...........[sgnd].............
Deputy President K Bean
CATCHWORDS
COMPENSATION - Commonwealth employees - Whether use of a treadmill constitutes reasonable medical treatment - Whether therapeutic treatment - Not obtained at the direction of a legally qualified medical practitioner - Not under supervision of a physiotherapist - Whether treadmill is an aid or appliance - No participation or assessment of inability to undertake a rehabilitation program - Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 16, 39
CASES
Re Rope and Comcare (2013) 135 ALD 410
Comcare v Watson (1997) 73 FCR 273
Bashar v Comcare Australia (2002) 69 ALD 784; [2002] FCA 837Re Jugovac and Comcare [2007] AATA 1294
REASONS FOR DECISION
Deputy President K Bean
29 April 2014
The applicant, Mr Matthews, has an accepted claim for workers’ compensation in respect of amputation of his right leg sustained on 30 December 1978 following a work-related accident involving the truck he had been driving. Mr Matthews subsequently gained weight as a result of his inability to exercise and, on 22 December 2011, he purchased a treadmill for regular home use. Mr Matthews’ claim for reimbursement for the cost of the treadmill, being $1,600[1], is the subject of these proceedings.
[1] Exhibit 1, T11/74.
On 22 January 2013, the respondent determined that it was not liable to pay compensation to Mr Matthews for the treadmill pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) on the basis that it was not “medical treatment”.[2] That determination was affirmed on reconsideration by letter dated 15 March 2013.[3] In particular, the reconsideration delegate considered that Mr Matthews “did not appear to seek medical opinion as to whether it was appropriate for [him] to use a treadmill at home, unsupervised” and noted that his physiotherapist had stated that “a treadmill at home was not needed as part of [his] rehabilitation.”[4] He further noted that as Mr Matthews had injured himself in 2012 whilst using the treadmill at home,[5] he was not satisfied that the treadmill was “reasonable medical treatment in the circumstances.”
[2] Exhibit 1, T23/99.
[3] Exhibit 1, T26/104.
[4] See Exhibit 1, T22/98.
[5] Exhibit 1, T20/93.
On 5 April 2013, Mr Matthews lodged an application for review of the reconsideration decision in this Tribunal, giving rise to these proceedings.
I propose to first set out the relevant statutory framework, before defining and addressing the issues which arise from this by reference to the evidence before me.
STATUTORY FRAMEWORK
Section 16 of the SRC Act relevantly provides:
Compensation in respect of medical expenses etc.
(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.
“Medical treatment” is relevantly defined in s 4(1) of the SRC Act to mean:
(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
...
(i) any other form of treatment that is prescribed for the purposes of this definition.
“Therapeutic treatment” is defined to include an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.
Section 39 of the SRC Act also relevantly provides as follows:
Compensation payable in respect of certain alterations etc.
(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.
(2)The matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under subsection (1) include such of the following matters as are relevant in that case:
(a) the likely period during which the alteration, modification, aid or appliance will be required;
(b) any difficulties faced by the employee in gaining access to, or enjoying reasonable freedom of movement in, his or her place of residence or work;
…
(e) whether arrangements can be made for hiring the relevant aid or appliance;
…
ISSUES
It follows that the issues for the Tribunal are:
(a)Whether the treadmill constitutes “medical treatment” obtained in relation to Mr Matthews’ compensable injury for the purposes of s 16 the SRC Act;
(b)If so, whether use of the treadmill is “reasonable” medical treatment in the circumstances; and
(c)If the treadmill is not compensable pursuant to s 16, whether it is a compensable “aid” or “appliance” within the meaning of s 39 of the SRC Act.
I will first outline the most salient aspects of the evidence before me, before addressing each of those issues more directly.
THE EVIDENCE
Mr Matthews and Ms Golder
Mr Matthews gave evidence at the hearing that he purchased the treadmill in 2011. Before that he had been visiting his physiotherapist, Ms Orla Timmins, “once a week for three weeks every month”[6] and doing one hour of exercises per visit, comprised of 10-15 minutes on a treadmill, 10-15 minutes using an arm bike, 10-15 minutes using a weight bench, and “the rest taken up doing exercises”. He said that he had to continue the exercises at home, and subsequently purchased an arm bike which was later reimbursed by the respondent. He then started looking to buy a treadmill as he was at that time only using a treadmill once a week during his visits to the physiotherapist, which he said was “nowhere near enough.”[7]
[6] Exhibit 2, [7].
[7] Exhibit 1, T12/75.
Mr Matthews said he walks on the treadmill for 40 minutes every day, and that the benefit of having a treadmill at home is that he can do so “rain, hail, or shine”. He gave evidence that he has been losing weight as a result of this regular exercise, and that he has gained weight every time he has stopped using the treadmill.
Both Mr Matthews and his wife, Ms Golder, also gave evidence that there are few proper paved footpaths where they live and that people who use their street for walking always use the road, because the unpaved footpaths are too rocky and uneven. Mr Matthews would therefore need to walk on the road using his frame. However he explained that he walks too slowly to be able to respond to moving cars. If he was to walk along the nearest paved footpath, which is 150 metres from their house, Ms Golder said that she would need to take Mr Matthews there in his wheelchair with his prosthesis on, and Mr Matthews would need to push his wheeled walking frame in front of him, on the road. Mr Matthews added that if he is walking on a slope, his right leg needs to be on a lower surface than his left. He estimated that the paved footpath in question, which runs along only one side of the road and is sloped, is approximately 200-300 metres long, such that he would have to come back around in his wheelchair several times in order to accumulate 40 minutes of exercise using this footpath.
Ms Orla Timmins, Physiotherapist
In a report dated 19 July 2013, Ms Timmins explained that the role of treadmill exercises in Mr Matthews’ physiotherapy treatment was:
To improve walking endurance, aerobic fitness and increase walking capacity and endurance. It was explained to Mr. Matthews that walking on firm ground would be just as beneficial. Mr. Matthews explained that the treadmill made it easier to achieve his recommended 30 minutes of exercise. Given his extensive medical history of obesity, atrial fibrillation, past CVA, hypertension, sleep apnoea and asthma, this level of exercise is very important for him.[8]
She also said that when Mr Matthews purchased the treadmill for home use she “made recommendations about frequency of use, rather than a formal programme.”[9]
[8] Exhibit 3, [5].
[9] Exhibit 3, [9].
In her oral evidence, Ms Timmins confirmed that it is important for Mr Matthews to have a good level of fitness and to exercise regularly. She said that amputees who walk more frequently have a better quality of life. Ms Timmins suggested that other forms of exercise that would also be reasonably available to him included aerobic exercises, bikes, weight lifting, and lower limb exercises such as squats and lunges. However, she agreed that it was reasonable that walking is Mr Matthews’ preferred form of exercise as “bikes and other gym equipment are more limited”, although she reiterated that physically there is no major difference between walking on firm ground and walking on a treadmill. She did note that the treadmill was good for maintaining a consistent exercise regime and that if Mr Matthews was required to walk outside every day, she would expect a reduction in compliance with his exercise routine. She acknowledged that a high level of motivation would be necessary for Mr Matthews to walk outside, and it would be a burden for his wife to push him in his wheelchair to the paved footpath every day.
Dr Prakash Raphael, General Practitioner
Mr Matthews’ general practitioner, Dr Raphael, provided a report dated 17 June 2013. He stated that, in his opinion, the purpose of the treadmill exercises was for Mr Matthews’ general health and well-being, as opposed to treatment for his compensable injury.[10] He reiterated that exercise is important for Mr Matthews’ rehabilitation (by which, he later clarified, he understood to mean his quality of life), and that the problems Mr Matthews had been experiencing with his stump, whereby it bled when he walked, were probably caused by his then new prosthesis and not his use of the treadmill.[11]
[10] Exhibit 4, [4].
[11] Exhibit 4.
Dr Raphael also gave oral evidence at the hearing. He confirmed that it was medically necessary for Mr Matthews to lose weight, and explained that his weight gain puts extra pressure on his stump and prosthesis, as well as his blood pressure and other co-morbidities. He agreed that walking on a flat surface would have the same benefit as walking on a treadmill, but added that unless a route near Mr Matthews’ house was checked by an occupational therapist or physiotherapist and considered to be safe, the treadmill would be the better choice. Dr Raphael added that he would prefer if the safety of the treadmill could be assessed by an occupational therapist, and a program for its use approved by a physiotherapist, but with that qualification said that he supported its use by Mr Matthews.
Following the conclusion of the hearing, Mr Matthews sought leave to obtain and tender reports from a physiotherapist and an occupational therapist as recommended by Dr Raphael at the hearing. I decided to allow Mr Matthews an opportunity to obtain those reports, which I considered could be highly relevant to the Tribunal’s decision. However, in an email dated 7 January 2014 Mr Matthews advised the Tribunal that his physiotherapist would not be assessing the treadmill and, on 22 January 2014, he lodged a letter from the Acting Team Leader at Port Augusta Community Health confirming this. At a directions hearing by telephone on 13 February 2014, Mr Matthews advised that he was still awaiting a report from the occupational therapist, but that he did not anticipate that it would relate to the treadmill, which the occupational therapist had indicated was “not within her jurisdiction” and which she apparently had not assessed when she visited his home. Accordingly, I decided that it would be appropriate to proceed to decide this matter on the evidence already before me.
CONSIDERATION
As I have indicated above, having regard to the applicable statutory framework, the issues for my determination are whether, in light of the evidence outlined above, the treadmill is either a form of compensable “medical treatment” or a compensable “aid” or “appliance” within the meaning of the SRC Act.
Accordingly, I propose to deal with each of these questions in turn.
Does the treadmill constitute a form of compensable medical treatment?
Having regard to the terms of s 4(1) of the SRC Act, the form of medical treatment which would seem to be most applicable in the circumstances of this matter is that described in s 4(1)(b), namely “therapeutic treatment obtained at the direction of a legally qualified medical practitioner.”
Contentions and Authorities
However, the respondent submitted that the treadmill did not come within the definition of “therapeutic treatment”, given that its use was not for the purpose of “treating” the compensable injury, but for Mr Matthews’ general health and well-being. The respondent also directed my attention to the decision in Re Rope and Comcare[12] where the Tribunal observed as follows:
It does not follow that any particular therapeutic treatment to be undertaken at the direction of a medical doctor in a course of medical treatment must be imbued with an intrinsic medical quality or feature. The meaning of ‘therapeutic treatment’ is not expressly confined to an activity that is intrinsically medical in nature, although in the usual run of cases therapeutic treatment may have a medical character; the essential requirement is that the treatment must be therapeutic. It is not difficult to conceive of many examples of therapeutic activities or devices that do not have any intrinsic medical quality, and that are not designed to alleviate an injury, that none the less may be applied for a medical or therapeutic purpose in the context of treating an injury. There is nothing intrinsically medical about a ball for example, but a ball may be put to a medical or therapeutic purpose when treating an injury, perhaps to improve muscle control or hand to eye coordination. If one considers the example of an exercise or gym program – the program may be one that involves activities commonly undertaken by people in pursuit of fitness, but the quality that renders it therapeutic is the extent to which the program is applied or undertaken for the purpose of treating a particular injury.
Thus, when determining whether an activity is ‘therapeutic treatment', whether the activity has a medical character, or whether it is specifically designed for a therapeutic or other purpose, or it is of broad utility, is beside the point. The sharp focus of the inquiry is whether the activity is obtained, applied or undertaken for a therapeutic purpose in the context of a program designed for the treatment of an injury. The important point is that ‘therapeutic treatment’ is for the purpose or object of treating an injury – the characteristics or qualities of the particular activity must be considered in the context of the purpose to which it is being put ...
[12] (2013) 135 ALD 410, [32] - [33].
The respondent further contended that, in any event, the treadmill was not a safe form of exercise for Mr Matthews at the moment, at least until the treadmill had been assessed by a physiotherapist and an occupational therapist, and it was clear that Mr Matthews was using the treadmill in the manner recommended and approved by a physiotherapist and/or an occupational therapist. The respondent further submitted that in all the circumstances, use of the treadmill by Mr Matthews in the absence of assessment by an occupational therapist or a physiotherapist was not ‘reasonable’ in all the circumstances.
The respondent also referred me to the case of Comcare v Watson[13], where the Federal Court held that “therapeutic treatment” in this context could include treatment aimed at alleviating the pain caused by an injury. Finn J observed in that matter as follows:
[13] (1997) 73 FCR 273.
It was only if the therapeutic treatment was "at the direction" of a doctor that it was, relevantly, medical treatment and hence its cost recoverable.
The formula, "at the direction of", in this setting contains an imperative element - by which I mean a doctor prescribes a specified course to be taken. That course in turn must be therapeutic treatment. In Thiele's case, above, for example, the doctor prescribed (inter alia) the construction of a swimming pool of particular specifications for the purpose of swimming exercises of a person suffering a spinal injury. And the issue was not whether a direction had been given to construct a pool, but rather whether the provision of the pool was itself therapeutic treatment. Justice Hill held it was not and, importantly, that:
"it does not become treatment merely because it is advised, prescribed or ordered by a medical practitioner": Thiele v Commonwealth, at 348.
For my own part I would be prepared to adopt the "advised, prescribed or ordered" terminology of Hill J as representing the proper meaning to be given to the "at the direction of" formula in the s 4 definition - these terms having relatively well understood and not greatly dissimilar connotations in the context of doctor-patient communications as to the undertaking of treatment for an injury. In consequence I reject not only the Tribunal's apparent construction of the formula as meaning "guidance" - I also reject the applicant's submission that direction requires monitoring, control or management by a doctor.
As the observation from Hill J I have quoted indicates, the direction must be to obtain "therapeutic treatment". These words raise the second matter of construction to which I need refer. I do not consider that the construction adopted by the Tribunal was erroneous. A course of treatment designed to, or aimed at, alleviating the pain caused by an injury or disease is, in my view, properly to be regarded as therapeutic treatment.
The applicant has submitted that a treatment can only be "therapeutic" if its object is to cure a disease or injury. Though some dictionary definitions do emphasise the "healing or curative" connotation of the words "therapy" and "therapeutic": see for example, Shorter Oxford English Dictionary (3rd ed); the latter's use in this context encompasses the alleviation of the pain of an injury. This view is consistent with the s 4 definition of "therapeutic treatment" which includes "treatment given for the purpose of alleviating an injury" (emphasis added). The Shorter Oxford English Dictionary, for example, defines "alleviation" as "the action of lightening ... pain". That usage is an appropriate one to apply here given the s 4 definition itself. And it permits a construction which accords with the beneficial purposes of the legislation: see Thiele's case, at 346 - 347.
To the extent that the terms might be thought to be ones having a "trade" meaning, or else are illuminated in some way by practitioners of the "trade", I would note in passing that both the applicant's own doctor, Dr Alder and an occupational physician, Dr Scott, described Ms Watson's program as variously "therapeutic in nature" or as "therapeutic".
The only additional comments I would make on this are, first, that therapeutic treatment in this setting is a purposive activity – that is, its purpose or object must be the treatment of the particular injury in question. If such is not the actual, specified purpose of the activity then notwithstanding its beneficial effects, it will not relevantly be therapeutic treatment for present purposes. Secondly, because such treatment is purposive, an indicator that a doctor-prescribed activity is intended, relevantly, to be therapeutic will commonly be the adoption of some level of monitoring of it to gauge whether it is appropriately adapted to its purpose or is effective in some degree in realising that purpose. Obviously the nature and extent of such monitoring will be affected significantly by the nature of the treatment. Some forms of treatment may require close checking; others may well be self-monitored, once prescribed. I mention this simply to caution against the view that a doctor's positive and active control and management are indispensable elements in treatment.
When one aggregates the terms of the par (b) definition, they are seen to have a dual requirement. There must be therapeutic treatment having as its purpose the treatment of the injury in question, and that treatment must be prescribed by a doctor.[14]
[14] At 276 – 277.
For completeness I also note that in Bashar v Comcare,[15] the Court further observed that the notion of “therapeutic” in this context “might well also include a further extension, namely, treatment for prophylactic or preventative purposes, that is to say, to prevent the pain, or other effects of an injury from becoming worse or from appearing”.[16] Further in Jugovac and Comcare,[17] the Tribunal followed the decisions in Watson and Bashar, holding that “the word ‘therapeutic’ is not confined to healing or curative connotations but may also include treatment for the purpose of preventing the pain or other symptoms of an injury becoming worse”.[18]
[15] (2002) 69 ALD 784; [2002] FCA 837.
[16] At [9].
[17] [2007] AATA 1294.
[18] At [7].
Analysis
It is accordingly clear that the first question I must address in this context is whether the use of the treadmill constitutes “therapeutic treatment” for the purposes of s 4(1)(b) of the SRC Act.
Is the use of the treadmill “therapeutic treatment”?
In determining that question, it is relevant in my view that the medical evidence before me is to the effect that Mr Matthews’ weight and associated health problems are at least partly related to his compensable injury, which makes it more difficult for him to exercise. Seen in that context therefore, one purpose of the treadmill is to prevent one of the effects of his injury, namely weight gain due to the difficulty of exercising, from becoming worse. Whilst there is clearly a less direct connection between Mr Matthews’ weight gain and his injury than there would be for example between his injury and pain resulting from that injury, nevertheless, I am satisfied on the evidence before me that one effect of his injury is to contribute to weight gain, which has other adverse health consequences for him. In these circumstances, and by way of analogy with the circumstances in Watson and Bashar, I consider that Mr Matthews’ use of a treadmill to exercise, with the purpose of mitigating or alleviating this consequence of his injury, can properly be regarded as “therapeutic treatment” within the meaning of s 4(1)(b) of the SRC Act.
I must also consider, however, whether it can properly be said that Mr Matthews “obtained” the relevant treatment “at the direction of a legally qualified medical practitioner.”
Was the treatment “obtained at the direction” of a doctor?
The evidence directed to that question is that Mr Matthews purchased the treadmill at his own initiative, albeit its use has subsequently been supported by Dr Raphael and by his physiotherapist, to the extent indicated above. In the course of his oral evidence at the hearing, Dr Raphael clearly endorsed Mr Matthews’ use of the treadmill to exercise, which he related to Mr Matthews’ status as an amputee. He also indicated that use of the treadmill was preferable in Mr Matthews’ case to walking outside. Whilst Dr Raphael expressed a strong preference that the use of the treadmill be assessed by an occupational therapist for safety and also be the subject of a plan devised by a physiotherapist, he nevertheless supported its use in principle.
The fact remains however that, whilst he supports its use, Dr Raphael did not “prescribe” or direct Mr Matthews to obtain the treadmill, and nor is he directing or monitoring its use. Indeed he made clear in his evidence that before he was prepared to fully endorse or “prescribe’’ its use, he would prefer that the treadmill be assessed by an occupational therapist for safety, and also be the subject of a program devised by a physiotherapist. As I have indicated above, it is my understanding that this has not yet occurred.
In these circumstances, I am not satisfied that it can properly be said that the treadmill was “obtained at the direction of a legally qualified medical practitioner”. Accordingly I have concluded that it does not fall within the terms of s 4(1)(b) of the SRC Act. Further, as Mr Matthews’ use of the treadmill has not been assessed by or carried out under the supervision of a physiotherapist, I am not satisfied that it comes within the terms of s 4(1)(d). Nor does it fall within any of the other definitions of “medical treatment” set out in s 4(1) of the SRC Act.
It therefore follows that Mr Matthews’ use of the treadmill is not “medical treatment” within the meaning of s 16 of the SRC Act. In these circumstances, it is unnecessary for me to proceed to consider whether it is “reasonable” for the purposes of s 16.
Is the treadmill a compensable aid or appliance?
It is clear from the terms of s 39 that an aid or appliance is only compensable in circumstances where “the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program.”[19]
[19] s 39(1)(b).
In the circumstances of this matter, it is clear that Mr Matthews is not currently undertaking a rehabilitation program and there was nothing before me to suggest that he had completed a rehabilitation program or been assessed as not capable of undertaking such a program. Accordingly, it follows that even if the treadmill could otherwise be regarded as an aid or appliance within the meaning of that section, its cost is not compensable because the threshold requirement for the application of s 39, namely the participation by an employee in a rehabilitation program or their inability to do so, has not been met.
Accordingly, I am also satisfied that the treadmill cannot be regarded as a compensable “aid” or “appliance’ within the meaning of s 39 of the SRC Act.
CONCLUSION
I have therefore concluded, with some reluctance, that the cost of the treadmill purchased by Mr Matthews is not compensable under the terms of the SRC Act. I have reached that conclusion reluctantly because it is clear on the material before me that Mr Matthews’ need for and use of the treadmill is related to his compensable injury.
There is no doubt that it is critical to Mr Matthews’ health and well-being that he undertake regular exercise. One of the best and most practical forms of exercise for him is walking, which of course is made much more difficult by his amputation. Very sensibly, he purchased the treadmill in an attempt to overcome some of the barriers and limitations imposed on him by his amputation, and allow him to undertake regular and sustained walking. It is clear from the evidence that it is not practically feasible or advisable for him to undertake significant walking outside where he lives, as he could have if he had not suffered the compensable injury.
It is surprising in these circumstances that the cost of the treadmill is not compensable. However for the reasons I have given, I accept the respondent’s submissions that the cost of the treadmill does not fall within the terms of the applicable provisions of the SRC Act. That is partly because it was not obtained at the direction of or on the recommendation of a medical practitioner, but at Mr Mathews’ own initiative and expense because of his strong desire to follow the medical advice he had been given, namely to undertake regular exercise.
DECISION
The decision under review is affirmed.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ........[Sgnd].........
Associate
Dated 29 April 2014
Date of hearing 12 November 2013 Date final submissions received 19 November 2013 Applicant In person Counsel for the Respondent Mr Ian Colgrave Solicitors for the Respondent Sparke Helmore Lawyers
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