Meta v Jr Richards & EG Richards Administration Pty Ltd
[2022] NSWPIC 104
•14 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Meta v JR Richards & EG Richards Administration Pty Ltd [2022] NSWPIC 104 |
| APPLICANT: | Gerard Meta |
| RESPONDENT: | JR Richards & EG Richards Administration Pty Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 14 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for costs payable under section 60 of the Workers Compensation Act 1987 for ongoing exercise physiology sessions and gym membership resulting from injury sustained by the applicant in the course of his employment with the respondent; Held– ongoing exercise physiology sessions and gym membership are reasonably necessary treatment resulting from the injury the applicant sustained in the course of his employment with the respondent. |
| DETERMINATIONS MADE: | 1. The name of the respondent is amended to JR Richards & EG Richards Administration Pty Ltd. 2. Exercise physiology sessions and gym membership are reasonably necessary treatment payable under s 60 of the Workers Compensation Act 1987 for injury the applicant sustained on 18 July 2016 in the course of his employment with the respondent. 3. The respondent is to pay the costs associated with exercise physiology sessions and gym membership in accordance with s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
At the time the applicant, Gerard Meta (Mr Meta) sustained injury the subject of these proceedings he was employed by the respondent, R Richards & EG Richards Administration Pty Ltd (Richards Administration), working as garbage truck driver. Mr Meta is currently 60 years of age.
Mr Meta relevantly sustained injury to his right shoulder on 18 July 2016 in the course of his employment with Richards Administration, for which liability is accepted, and Mr Meta has received permanent impairment compensation for 11% whole person impairment resulting from that injury. Liability is also accepted for the consequential injury Mr Meta has sustained to his left shoulder as a result of the injury he sustained to his right shoulder on 18 July 2016 in the course of his employment with Richards Administration.
In these proceedings, Mr Meta makes a claim under s 60 of the Workers Compensation Act 1987 (1987 Act) for costs associated with his ongoing attendance at exercise physiology sessions and for costs associated with his gym membership.
Mr Meta’s claim is declined and he has been issued with notices dated 20 October 2021[1] and 4 January 2022[2] in which he has been advised of the decision to decline his claim.
[1] Application to Resolve a Dispute (ARD) at p 12.
[2] ARD at p 17.
ISSUES FOR DETERMINATION
The parties agree the following issue remains in dispute:
(a) whether ongoing exercise physiology sessions and gym membership are reasonably necessary treatment payable under s 60 of the 1987 Act for injury
Mr Meta sustained on 18 July 2016 in the course of his employment with Richards Administration.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Meta’s claim for compensation came before me for teleconference on 21 February 2022. Mr Santone appeared for Mr Meta and Mr Russell appeared for Richards Administration. Unfortunately Mr Meta was not able to be present as he was at work and apparently was unaware of the teleconference listing.
With Mr Meta’s claim unresolved at teleconference, his claim came before me for conciliation conference/arbitration hearing on 3 March 2022. Mr Tanner of counsel appeared for
Mr Meta, instructed by Mr Santone. Mr Hunt of counsel appeared for Richards Administration, instructed by Mr Russell. Mr Meta was present.Following my discussions with the parties, I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of relevant evidence
Statements of Mr Meta
Mr Meta provided a number of statements, dated 19 October 2017[3], 15 April 2018[4], 8 August 2019[5] and 20 January 2022[6].
[3] ARD at p 1.
[4] ARD at p 4.
[5] ARD at p 7.
[6] ARD at p 10.
In his initial statement Mr Meta relevantly explained he came to surgical treatment of his right shoulder on 21 September 2016 under the orthopaedic care of Associate Professor Haber after which he received physiotherapy treatment and as at 26 September 2017 he was certified fit to undertake his pre-injury hours with a 2 kg lifting and carrying restriction for his right arm and a 3.75 kg pushing restriction and an 8.95 kg pulling restriction. Mr Meta also explained that as a result of the injury he had sustained to his right shoulder, he began to undertake more tasks with his left shoulder, particularly so “lifting tasks”, causing his left shoulder to become symptomatic. Mr Meta said that on 17 October 2017 he had been referred for psychological counselling with Daniel Billingham as he was struggling to cope with the effect the injury had had on his life.
In his subsequent statement taken approximately six months later, Mr Meta relevantly reported that both his shoulders remained symptomatic and he was undertaking “exercise physiotherapy with Scott Parker twice per week” and had recently commenced occupational rehabilitation.
In a further subsequent statement taken some 16 months later, Mr Meta again relatively reported that both his shoulders remained symptomatic.
In his most recent statement Mr Meta said:
“Since I started rehabilitating both my shoulder in 2019, I have been going to the gym three to four times a week.
I am at the gym for around one and a half hours each session.
At the gym, I do set programs that involve strengthening my shoulders and my arms.
If I miss a week at the gym, my shoulders, especially my right shoulder develops an ache. Generally, over time, if I miss gym work I noticeably feel like I am losing strength in my right arm.
When I lose strength in my shoulders and arms, it affects my ability to do housework such as making my bed, hanging the clothes on the line and anything that involves arm strength.
Consistently going to the gym has drastically improved my mental health. It improves my mood and helps manage the pain in my right shoulder.
If I do not go the gym for a few days, my right shoulder becomes quite stiff and painful. I am against painkillers or any medication to treat my shoulders.
My doctors have advised me that there is no other suitable treatment for my right shoulder. My shoulders are not operable, and I do not want to take medication.
My exercise physiologist, Nick Kontopoulos, told me that my gym sessions strengthen my shoulder muscles which prevent against future injury or further pain. I believe this is working.
The gym has increased the movement in my shoulders and arms, and I feel stronger and more stable.”
It is evident from his statements that Mr Meta’s employment with Richards Administration was terminated on 15 September 2017 for reasons unconnected with his injury, and while he applied for multiple jobs at various transport companies he had difficulty obtaining employment as a truck driver.
Treating medical evidence
Warrawong Medical Surgery
Mr Meta came under the general medical care of Dr Thuang relevant to the injury he sustained to his right shoulder on 18 July 2016. Dr Thuang practises out of Warrawong Medical Surgery, as does Dr Khadka under whose care Mr Meta has also come.
Dr Thuang provided a report dated 18 January 2018[7] in which he confirmed Mr Meta had consulted him that same evening. Mr Meta was reportedly referred for orthopaedic review with A/Prof Haber, with diagnostic investigation relevantly demonstrating “right massive full thickness rotator cuff tear”. Dr Thuang reported that while Mr Meta came to arthroscopic capsular release under the care of A/Prof Haber on 21 September 2016 no component of the “massive rotator cuff tear” was repairable. Dr Thuang noted that Mr Meta initially came under the care of an exercise physiologist, Caroline Robin, on 28 March 2017. He noted too that Mr Metal subsequently came under the care of an alternate exercise physiologist, Scott Parker, on 20 September 2017 and remained under his care as at the date of reporting.
Dr Thuang reported that when discussing treatment options with Mr Meta on 12 September 2017 A/Prof Haber had reported of Mr Meta “[H]e has been extremely active and his disability has been an extremely difficult thing to accept” and referral was made on 15 January 2018 for orthopaedic review by Professor Ireland for second opinion. While it is evident from the clinical records that Mr Meta consulted with Professor Ireland on 6 March 2018, Professor Ireland’s consequent report is not before the Commission.[7] ARD at p 38.
Dr Khadka provided a letter of referral dated 30 January 2020[8] addressed to Nick Kontopoulos, exercise physiologist, in which he wrote:
“Thank you for seeing Gerard for assessment, advice and management. He has ongoing right shoulder issue. He is seeing a physiotherapist. He has seen exercise physiologist in the past but he wants to see someone different for more support.”
[8] ARD at p 64.
In a medical certificate dated 30 November 2021[9] Dr Khadka confirmed he had assessed
Mr Meta that day. He wrote:“In my opinion, Gerard Meta is suffering from Right rotator cuff injury happened at work. He has been seeing Exercise Physiologist which is helping him. The report from the Exercise Physiologist (attached) states that he has not fully recovered from his injury and the input he is getting from Exercise Physiologist and Gym is helping him continue his current work.
My recommendation is to continue with the current treatment.”
[9] ARD at 66.
It would appear that the report of the exercise physiologist to which Dr Khadka referred is that of Mr Kontopoulos dated 25 November 2021, discussed below.
Associate Professor Haber
A/Prof Haber is Mr Meta’s treating orthopaedic surgeon and he provided a report dated 9 June 2018[10] in which he reported he initially assessed Mr Meta on 21 July 2016 following referral from Dr Thuang. A/Prof Haber provided an initial provisional diagnosis of a massive full thickness rotator cuff tear and relevant to the surgical treatment Mr Meta ultimately came to under his care on 21 September 2016, A/Prof Haber wrote:
“As he had a massive rotator cuff tear with no component repairable, a release was performed. There was a marked capsulitis. I therefore recommended early range of motion exercises and recommended he commence physiotherapy as soon as possible.”
[10] ARD at 67.
On review some 10 weeks after surgery, A/Prof Haber noted Mr Meta still suffered a “quite restricted” range of motion and reported;
“As he was obtaining good progress with ongoing physiotherapy, I had encouraged him to continue with his range of motion and strengthening exercises under the supervision of the physiotherapist.”
On review approximately one year after surgery, as noted by Dr Thuang, A/Prof Haber described Mr Meta as being frustrated by the ongoing weakness in his shoulder and finding his disability “extremely difficult” to accept. A/Prof wrote:
“We had therefore agreed on ongoing physiotherapy and involvement of an exercise physiologist.”
This noted, A/Prof Haber cautioned on review on 4 January 2018 that although “ongoing exercise may be beneficial”, Mr Meta “has to be realistic about potential improvement which is very limited”. A/Prof Haber in effect discharged Mr Meta from his care at this point in time.
Hands on Health Physiotherapy
Mr Meta received physiotherapy treatment from Justin Castelli, and in his report dated 5 July 2019[11] Mr Castelli noted Mr Meta’s right shoulder injury to be inoperable and made the following recommendations:
“Completion of supervised exercise program with continuation of self-driven strength program consulted at a chosen community facility.
Passive treatment in physio will not confer further improvement in strength/function as does not meet the requirements to be deemed reasonably necessary.”
Mr Kontopoulos
[11] ARD at p 300.
Nick Kontopoulos is an exercise physiologist, under whose care Mr Meta has come for his right shoulder injury following referral from Dr Khadka. Mr Kontopoulos has provided a letter dated 25 November 2021 addressed to Dr Khadka[12]. In his report Mr Kontopoulos noted that further treatment under his care has been declined, but wrote:
“I am pleased to report that a combination of our treatment and Gerard attending the gym regularly by himself have significantly assisted his function and decreased his pain levels. This has in turn enabled him to remain at work in a full capacity.
I believe that as a result of our outcomes Mr Meta should continue to attend gym and intermittently attend treatment in clinic.”
Independent medical evidence
Dr Burrow
[12] ARD at p 62.
Mr Meta was initially orthopaedically assessed on 27 February 2018 by Dr Burrow in his capacity as independent medical examiner. Dr Burrow provided a report dated the same day[13]. Dr Burrow is a specialist in shoulder and knee reconstruction. At the time of assessment, Mr Meta had yet to consult with Professor Ireland. In his report Dr Burrow wrote of Mr Meta:
“After his fall form the truck in 2016, he presented with a full thickness supraspinatus cuff tear that Professor Haber operated upon but was unable to repair. The tendon now shows a large to massive significant retraction.”
[13] ARD at p 40.
In response to specific question regarding prognosis, Dr Burrow provided opinion:
“The right shoulder will continue to deteriorate by way of increasing pain, weakness and dysfunction and eventually he will develop full blown arthritis and will require reverse shoulder replacement. The prognosis is therefore poor.”
Mr Meta was re-assessed on 13 June 2018. Dr Burrow provided a report dated the same day[14]. Dr Burrow noted on this occasion that second opinion had reportedly been provided by Professor Ireland, with Professor Ireland recommending continued non-operative treatment, specifically “continuation of a gym based a strengthening program”. At the time of assessment Mr Meta was noted to be unemployed.
Dr Assem
[14] ARD at p 48.
Mr Meta was assessed on 15 May 2019 by Dr Assem in his capacity as independent medical examiner. Dr Assem provided a report dated the same day[15]. Dr Assem is a rehabilitation specialist. Dr Assem relevantly provided diagnosis in terms of “a massive rotator cuff tear that was surgically debrided” and described prognosis as “guarded as he has marked pain in both shoulders that will continue to limit his vocational and avocational activities”. At the time of assessment Mr Meta was noted to be working with Premier Buses as a casual bus driver.
The Outlook Physiotherapy
[15] ARD at p 53.
An independent physiotherapist consultant report dated 9 October 2021 was prepared by Gillian Summerbell[16]. Ms Summerbell’s report is prepared “on the papers” and is prepared in response to query as to whether further exercise physiology treatment is “reasonable or necessary”.
[16] Reply at p1.
Ms Summerbell provided a clinical history from the papers made available to her, and it is apparent that over time Mr Meta has come under the care of four different physiologists. While Mr Meta was initially referred to a physiotherapist and an exercise physiologist, his initial physiologist “left after 6 weeks” and his second physiologist prescribed exercises which caused left shoulder pain. With the ceasing of his physiotherapy treatment in or about mid 2018, Mr Meta commenced attending a gym and undertaking unsupervised exercise.
Mr Meta reportedly was “unsure of which exercises to perform as some were aggravating his shoulders” and he was referred to an alternate exercise physiologist, Katerina Ziorgiannis, by Dr Tague. Ms Ziorgiannis reportedly assessed Mr Meta on 17 October 2018 and recommended a graded strengthening program for eight weeks. Mr Meta’s progress under the care of Ms Ziorgiannis appears “unknown” and Mr Meta subsequently came under the care of Mr Kontopoulos who assessed him 13 March 2020.While it is apparent Mr Meta was then reviewed by Mr Kontopoulos on a monthly basis up until June 2020 no further information is provided about his progress until Mr Kontopoulos made an allied health recovery request dated 3 August 2021. Of her discussion with
Mr Kontopoulos on 7 October 2021, Ms Summerbell wrote:“He reported from a conversation that he had with Gerard on 1.09.21 that he is doing quite well. His last EP session was the 23.06.21. He has maintained his ROM and function. He is continuing to drive buses 3-4 days/week. The company employs him on a casual basis but he works extra shifts if the company offers them. He would prefer a full-time position. He was attending the gym on a gym pass until they closed due to the delta Covid outbreak at the end of June. GIO had just approved another 3 month gym pass, but Gerard hadn’t staring using it. Gerard is expecting the gym will allow him to sue the 3 months pass when the gyms reopen. He has been working with a home program since the end of June. He is compliant with his home program.
I discussed with Nick the requirements about treatment being reasonably necessary.”
Ms Summerbell’s recommendations are recorded as follows:
“Gerard’s (R) shoulder has recovered well from the injury he sustained 5 years ago. To have achieved an 80-90% active ROM particularly in elevation and a 20kg lifting ability is a great result. He is working in an occupation that doesn’t require heavy lifting or raising his arms above shoulder height. Treatment goas must be realistic and achievable. With 11% WPI he was never going to obtain full shoulder ROM and the ability to lift more than 20kgs. He has reached a self-management stage as demonstrated by his home program of the last 3 months.
I would recommend Gerard continuing in the gym if the gym honours the approved 3 month pass provided in June. However, when this is completed no further gym passes can be recommended as reasonable or necessary. Likewise, no further EP is reasonable or necessary.”
Submissions
Mr Hunt and Mr Tanner made oral submissions, which I have considered. I am grateful to counsel for the assistance provided to me in this particular mater. A recording of counsels’ submissions is available to the parties.
Determination
Treatment
Liability is not disputed for the injury Mr Meta sustained to his right shoulder in the course of his employment with Richards Administration and neither is liability disputed for the injury he has sustained to his left shoulder, which is consequential in nature. Accordingly, the only issues for determination in this matter are whether ongoing exercise physiology sessions and gym membership are reasonably necessary treatment payable under s 60 of the 1987 Act for injury Mr Meta sustained in the course of his employment with Richards Administration.
Section 60 of the 1987 Act provides:
“60 (1) If, as a result of an injury received by a worker, it is reasonably necessary that:
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
What constitutes reasonably necessary treatment was considered in Rose v Health Commission (NSW)[17]. Burke CCJ said:
“Treatment, in the medical or therapeutic context, relates to the management of disease, illness or injury by the provision of medication, surgery or other medical service designed to arrest or abate the progress of the condition or to alleviate, cure or remedy the condition. It is the provision of such services for the purpose of limiting the deleterious effects of a condition and restoring health. If the particular ‘treatment’ cannot, in reason, be found to have that purpose or be competent to achieve that purpose, then it is certainly not reasonable treatment of the condition and is really not treatment at all. In that sense, an employer can only be liable for the cost of reasonable treatment.”
[17] (1986) 2 NSWCCR 32 (Rose).
His Honour added:
“1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2. However, although falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the parties seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3. Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4. It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”
In Diab v NRMA Ltd[18], Deputy President Roche cited Rose with approval and provided a summary of the principles as follows:
[18] [2014] NSWWCCPD 72.
“In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ at point (5) in Rose, namely:
(a)the appropriateness of the particular treatment;
(b)the availability of alternative treatment, and its potential effectiveness;
(c)the cost of the treatment;
(d)the actual or potential effectiveness of the treatment, and
(e)the acceptance by medical experts of the treatment as being appropriate and likely to be effective.
With respect to point (d), it should be noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it is certainly not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carries a risk of a less than ideal result, a poor outcome does not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts.”
Whether the need for reasonably necessary treatment arises from an injury is a question of causation and must be determined on the facts in each case as discussed in Kooragang Cement Pty Ltd v Bates[19] and in this particular matter Mr Meta is required to establish the work-related injury he has sustained materially contributes to the need for ongoing attendance at exercise physiology sessions and his gym membership. This requirement was confirmed in Murphy v Allity Management Services Pty Ltd[20].
[19] (1994) 35 NSWLR 452.
[20] [2015] NSWWCCPD 49.
Mr Meta has sustained what has been described by his treating orthopaedic surgeon,
A/Prof Haber, as a “massive rotator cuff tear with no component repairable”. His prognosis is described by Dr Burrows as “poor” and described by Dr Assem as “guarded”. It is accepted Mr Meta has sustained 11% whole person impairment resulting from his right shoulder injury, and it is evident his right shoulder remains problematic to date.Following arthroscopic capsular release under the care of A/Prof Haber on 21 September 2016, A/Prof Haber recommended Mr Meta commence with physiotherapy treatment “as soon as possible”. Mr Meta subsequently came under the care of an exercise physiologist, Ms Robin, in late March 2017, who “left after six weeks”. In September 2017 A/Prof Haber agreed to a medical management plan for Mr Meta which included the involvement of an exercise physiologist in addition to physiotherapy treatment, and Mr Meta came under the care of another exercise physiologist, Mr Parker. While Mr Meta remained under the care of Mr Parker into early 2018 it appears the exercise program provided to him by Mr Parker caused Mr Meta left shoulder pain.
With Mr Meta in effect being discharged from A/Prof Haber’s care in early 2018 and Professor Ireland recommending Mr Meta continue with non-operative treatment, specifically “continuation of a gym based strengthening program”, Mr Meta was noted to be attending a gym by September 2018 and undertaking unsupervised exercise, which was aggravating his shoulders. Mr Meta subsequently came under the care of another exercise physiologist,
Ms Ziorgannis, in September 2018 and while his progress under her care is described as “unknown”, in mid 2019 Mr Meta’s treating physiotherapist, Mr Castelli, recognised that physiotherapy treatment would not improve Mr Meta’s “strength/function” and recommended a continuing exercise program under supervision.In January 2020 Dr Khadka referred Mr Meta to yet another exercise physiologist,
Mr Kontopoulos, with Mr Meta coming under his care in March 2020. Mr Meta was initially reviewed by Mr Kontopoulos on 13 March 2020. In conversation with Ms Summerbell on 7 October 2021 Mr Kontopoulos reported that when he last spoke with Mr Meta on 1 September 2021 he was “doing quite well” and while he had not been attending the gym since the end of June as it had been closed due to COVID-19, he planned to re-attend when the gym reopened.Mr Meta said he has been attending a gym for rehabilitation purposes since 2019, undertaking exercise which strengthen his shoulders and arms. He said his attendance at the gym improved his mental health and assisted in the management of his right shoulder symptoms. Mr Meta said Mr Kontopoulos had told him his gym sessions would strengthen his shoulder muscles, which in turn would prevent further injury and pain, and Mr Meta believed this to be working.
Mr Kontopolous too reported that the treatment received by Mr Meta at his clinic combined with his attendance at the gym had “significantly assisted his function and decreased his pain levels”, which “in turn had enabled him to remain at work in a full capacity”. It was
Mr Kontopolous’ recommendation that Mr Meta remain under his care and continue to attend the gym. Dr Khadka also reported Mr Kontopolous’ care was assisting Mr Meta and he echoed Mr Kontopolous’ recommendation Mr Meta remain under the care of an exercise physiologist and continue to attend the gym.While Ms Summerbell accepted Mr Meta has sustained 11% WPI resulting from the injury he sustained to his right shoulder in the course of his employment with Richards Administration, she considered he had “recovered well” and described his active ROM achievement and lifting ability as “a great result”. She considered Mr Meta had now reached “a self-management stage as demonstrated by his home program of the last 3 months” and in essence provided recommendation that once Mr Meta had exhausted his pre-approved three month gym membership, no further gym membership should be approved as it was not “reasonable or necessary”. She likewise provided opinion no further exercise physiology sessions were “reasonable or necessary”. When considering Ms Summerbell’s opinion it must be borne in mind she did not have the opportunity to meet with Mr Meta and neither did she have the opportunity to review his statement in which he beneficially addressed his gym attendance and treatment under the care of Mr Kontopoulos. It must also be borne in mind that due to the closure of the gym he attended due to COVID 19, Mr Meta had no option available to him during the three month period to which Ms Summerbell referred other than to undertake a home program.
Following review of the evidence as a whole and following careful consideration of counsels’ submissions, having particular regard to the support afforded to Mr Meta by Dr Khadka and
Mr Kontopolous, under whose care Mr Meta remains to date, I am of the view ongoing exercise physiology sessions and gym membership are reasonably necessary treatment to manage the injury Mr Meta sustained in the course of his employment with Richards Administration. In reaching my conclusion I draw comfort too in the opinions previously provided by A/Prof Haber and Mr Castelli to the effect that Mr Meta’s medical management should involve supervised exercise and the opinion reportedly provided by Professor Ireland that Mr Meta’s medical management should involve “a gym based strengthening program”.I prefer the recent recommendations provided by Dr Khadka and Mr Kontopolous and the earlier recommendations of A/Prof Haber, Mr Castelli and Professor Ireland to those of Ms Summerbell as all have had the opportunity to assess Mr Meta with a view to offering opinion regarding his day to day medical management whereas Ms Summerbell has provided opinion regarding Mr Meta’s day to day medical management without the opportunity to assess Mr Meta or review his statement addressing his gym attendance and treatment under the care of Mr Kontopoulos. Moreover, Ms Summerbell has not considered whether ongoing exercise physiology sessions and gym membership are reasonably necessary treatment to manage the injury Mr Meta sustained in the course of his employment with Richards Administration as required by s 60 of the 1987 Act but rather has turned her mind as to whether the treatment is “reasonable or necessary”, which is not the correct test.
SUMMARY
It is not disputed Mr Meta sustained injury to his right shoulder in the course of his employment with Richards Administration and neither is it disputed he has sustained injury to his left shoulder in the nature of a consequential injury.
I have determined ongoing exercise physiology sessions and gym membership are reasonably necessary treatment for injury Mr Meta sustained in the course of his employment with Richards Administration. Richards Administration are to pay the costs associated with the exercise physiology sessions and gym membership in accordance with
s 60 of the 1987 Act.
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