Ragg and Military Rehabilitation and Compensation Commission

[2006] AATA 414

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 414

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2005/15

VETERANS’ APPEALS DIVISION		)
Re		APRIL RAGG

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date12 May 2006 

PlaceBrisbane

Decision

In accordance with s 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal:

1.      Set aside the decision of the respondent dated 22 June 2005;

2.      In substitution decides the respondent is liable to pay the cost of hiring a recumbent exercise bicycle for a period of 3 months from the date of implementation of this decision;

3.      The respondent should pay the applicant’s costs, if any.

..................Signed....................

Deputy President

CATCHWORDS

COMPENSATION – injured in the course of employment – acceptance of liability for condition suffered – acceptance to pay for physiotherapy – request for hire of recumbent bicycle – meaning of “medical treatment” – whether recumbent bicycle is “reasonably required” 

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16(1), 39(1)(2)(e), 62

Theile v The Commonwealth (1990) 22 FCR 342

REASONS FOR DECISION

12 May 2006 Deputy President P E Hack SC    

Introduction

4.The question in issue in this case is whether the respondent is liable to meet the cost of hiring a recumbent bicycle to aid in the rehabilitation of the applicant.

Background

5.The question arises in this way. The applicant, Mrs April Ragg, enlisted in the Army on 4 April 1995. On 26 October 1997, and in the course of her employment, Mrs Ragg was injured when a metal roller door fell off its hinges and struck her on the back of her neck.

6.Not surprisingly, the respondent has accepted liability for the condition of chronic musculoligamentous strain of the cervical spine with subsequent sequelae of chronic fibrositis. But as a consequence of, I assume, a difficult recovery from the injury the respondent in September 2004 accepted liability for the condition of major depressive disorder.

7.The respondent has accepted liability to pay for physiotherapy provided to the applicant at the Palmerston Physiotherapy Clinic. I infer from the T-documents provided to the Tribunal, particularly T31 and T33, that the respondent has required the physiotherapy clinic to prepare and submit a physiotherapy management plan. On 30 March 2005 Ms Bronwen Kendall, the physiotherapist who had been treating the applicant, submitted a physiotherapy management plan to the respondent. The copy of the plan available to me (T33) bears notations that suggest that the plan was accepted on behalf of the respondent on 6 April 2005.

8.Included within the plan, and under the heading “Short-term goals and prognosis”, appears the following,

Sourced reclining exercise bike for home and tried in shop – not available for                  hire just yet. Continue and progress stability program – neck and whole   trunk”

At the same time as the plan was submitted Ms Kendall submitted to the respondent a request for the hire of a recumbent bike for a period of 3 months at a cost of $200.00. Ms Kendall made these comments,

To assist with increasing general endurance and total work capacity. Recumbent position means neck is in comfortable posture, and will not be aggravated during aerobic workout.

9.The evidence is that a recumbent bicycle is a stationary exercise bike where the user lies back in a supine position rather than sitting erect. It is a piece of equipment that seems to me to be perfectly simple and easy to use and one that does not pose any particular risk to its user. In short, I do not regard it as being a piece of equipment that requires supervision during its use.

10.Despite the comments of Ms Kendall and the modest cost, the respondent in a letter dated 14 April 2005, determined that there was no liability to pay,

because this item does not fall into the category of ‘medical treatment’ (in particular supervised medical treatment) as defined in the Preliminary of the SRCA (1988).

11.The applicant responded with a somewhat combative letter of 26 April 2005 contending, in effect, that the recumbent bicycle came within paragraph (h) and (i) of the definition of medical treatment in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) and that liability was established, as well, under s 39 of the Act.

12.Despite these contentions the decision was affirmed on internal review on 22 June 2005. Ms Ragg commenced proceedings in this Tribunal on 14 July 2005.

The Hearing

13.The matter came on for hearing in the Tribunal circuit to Darwin on 7 April 2006. The applicant’s husband, Mr Colin Ragg, represented her although Mrs Ragg, who was out of the Territory at the time, “appeared” by telephone link. Ms Madden, a solicitor with the Australian Government Solicitor, appeared for the respondent.

14.The evidence was essentially documentary. Apart from the T-documents the applicant relied upon two reports, one from her psychiatrist, Dr Mary Frost, dated 28 September 2005 and the other from Mr Paul Foster, a physiotherapist at the Palmerston Clinic.

15.The respondent relied upon a body of material regarding the facilities available at the Palmerston Leisure Centre gymnasium. The material establishes (and Mr Ragg accepted) that that gymnasium was some 27 minutes drive from the applicant’s home, some 10 minutes drive from her work and 3 kilometres from the Palmerston Physiotherapy Clinic. Ms Madden also tendered correspondence directed to establishing that Mrs Ragg was capable of travelling some distance in a motor car. I accept this to be the case.

16.Finally Ms Madden tendered a letter from the supervisor of the Australian Army gymnasium at Robertson Barracks (where the applicant works) to make the point that defence civilians (who include the applicant) may use that gymnasium which is equipped with recumbent bicycles. Despite this letter being provided to Mr Ragg on the morning of the hearing he was agreeable to it being admitted. At a stage when the Tribunal had a break he took the opportunity to speak to the supervisor on the telephone and was told that persons using equipment at the barracks gym are not supervised and that army personnel have priority of use over defence civilians. Ms Madden objected to him giving this evidence from the bar table so I had Mr Ragg affirmed and had him repeat what he had said. Despite Ms Madden’s objections I accept, on the basis of Mr Ragg’s evidence, that persons using the Robertson barracks gymnasium in the way that the applicant would, would not be supervised, although there would be a supervisor on the premises and that Mrs Ragg’s use of equipment could be interrupted if Army personnel required use of the same equipment.

The Contentions

17.     The applicant advanced two broad arguments,

·that provision of the recumbent bike amounted to medical treatment, under, in particular, paragraphs (h) and (i) of the definition of that expression, and

·that it came within the ambit of s 39 of the Act.

18.     The respondent submitted,

·that hire of the bicycle would not amount to medical treatment it being the apparatus and not the treatment, and

·that s 39 did not assist the applicant because it could not be said that it was reasonably required.

Medical Treatment

19.Section 14 of the Act creates the liability to pay compensation in respect of an injury. And by virtue of s 16(1), that liability includes the cost of medical treatment obtained in relation to that injury. The paragraphs in the definition of medical treatment in s 4 that are relied upon are,

(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise.

(i) any other form of treatment that is prescribed for the purposes of this                definition.

20.The latter provision may be dealt with quite shortly. Whilst the applicant’s reliance is understandable it is misplaced. Prescribed, when used in this context, means prescribed in a statutory instrument not prescribed by a health practitioner. There is no statutory instrument that has any present relevance.

21.The difficulty with the applicant’s other argument is that it does not distinguish between the treatment and the means by which the treatment is carried out. That distinction was drawn by Hill J in a similar context in Thiele v The Commonwealth (1990) 22 FCR 342. There his Honour was concerned with a hydrotherapy pool. His Honour said (at 347),

There is, however in my opinion, a real difficulty in regarding the pool itself as being part of the treatment rather than as being the place at which the treatment is carried out.

…

..

In no ordinary use of the language can the building of a swimming pool be seen itself to be treatment. The process of treatment commences only after the pool is in position”

So too, in my view, with the recumbent bicycle. The provision of it is not treatment. The process of treatment starts once it is in place and in use.

22.That conclusion is also sufficient to deny the applicability of paragraphs (b) and (d) of the definition. Although these paragraphs were not relied upon, Ms Madden very fairly and properly drew them to my attention. She was right to do so, but she was right in submitting that they had no application.

23.It follows that in my view the hire of a recumbent bicycle cannot be regarded as medical treatment.

24.I should say, against the possibility of a different view being taken of that issue elsewhere, I would have been satisfied that it would have been reasonable, that is, I consider the qualification in s 16(1) is satisfied. My reasons for reaching that view are set out in the subsequent discussion of the expression reasonably required in s 39.

Section 39

25.     The section is in these terms,

(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:

(c)     any alteration of the employee’s place of residence or place of work;

(d)any modification of a vehicle or article used by the employee; or

(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.

26.It is also relevant to note that s 39(2), which lists the matters to be regarded in determining the amount of compensation, includes, by paragraph (e),

whether arrangements can be made for hiring the relevant aid or appliance.

27.There is no doubt on the material (and the respondent put no argument to the contrary) that the applicant has suffered an injury resulting in an impairment. And, given the definition of rehabilitation program in s 4 as including physiotherapy, I have no doubt that the physiotherapy management plan put forward by Ms Kendall from the Palmerston Physiotherapy Clinic, and approved by the respondent, answers the description of a rehabilitation program being undertaken by the applicant. Equally, as it seems to me, the recumbent bicycle is an aid or appliance. The terms are not defined and need be given their ordinary meaning.

28.The real contest at the hearing was whether the recumbent bike was reasonably required by the applicant having regard to the nature of her impairment and the requirements of the rehabilitation program. The arguments that the respondent advanced were that,

·there was no evidence on the nature of the rehabilitation program nor evidence from medical practitioners that the use of a recumbent bike is required as part of the applicant’s rehabilitation,

·the medical evidence is general and does not support a finding that the recumbent bicycle is reasonably required.

29.In addition the respondent argued that the use of a recumbent bicycle would entail an unsupervised activity and would contravene the Comcare Rehabilitation Model.

30.I am unable to accept these arguments.

31.The first, in my view, overlooks the detail set out in the physiotherapy management plan (T33) and the physiotherapist’s request (T4). I have extracted those comments in paragraph 5 above. On the basis of that material I conclude that the applicant’s treating physiotherapist is of the view that it would be desirable for the applicant to use a recumbent bike. It may be accepted that there is no evidence from a medical practitioner to that effect, nor indeed, is there direct evidence from the physiotherapist but it seems to me to be plain that the physiotherapist holds that view. It would, I think, be perverse to reach any other conclusion. Given the costs in issue here there is need to keep a sense of proportion.

32.It follows that I consider the recumbent bicycle to be required. Is it reasonably required? The respondent relies upon the fact that it has offered membership of the Palmerston gymnasium to the applicant; a gymnasium some 27 minutes drive from her residence and some 10 minutes from her work. The respondent relies, as well, upon the demonstrated capacity of the applicant to travel.

33.So much may be accepted but a round trip of just under an hour hardly seems warranted where the amount involved is $200.00. Moreover it appears from document 2 in Exhibit 4 that the cost of gymnasium membership is significantly greater than the cost involved here. I regard the hire of a recumbent bicycle as being reasonably required.

34.The argument advanced by the respondent regarding supervision is, with respect, misconceived. The recumbent bike is not a dangerous piece of equipment. There seems to be nothing about it, and certainly nothing was pointed out to me, that suggests that supervision would be required in its use. The applicant’s use would be supervised to the extent necessary by her following an exercise regime laid down by her physiotherapist.

35.It follows that in my view the matters in s 39 of the Act were made out and that the respondent was liable to pay compensation to the applicant in respect of the costs of hiring a recumbent bicycle as requested in March 2005. I was however concerned that more than 12 months had elapsed from the making of that request. It was not clear to me whether the applicant is still involved in a physiotherapy management plan and whether her current plan involves the use of a recumbent bicycle.

Events Post Hearing

36.Because of that concern I gave leave at the hearing, and at a subsequent directions hearing on 28 April 2006, for the parties to file further material directed to that issue. The additional material received (and the exhibit numbers assigned) comprises,

·Exhibit 9 – letter from Mr Ragg to the Tribunal dated 18 April 2006 enclosing,

·    letter, Palmerston Physiotherapy Clinic of 18 April 2006,

·    4 pages described as “Clinical Pilates Program”.

·Exhibit 10 – letter from Australian Government Solicitor to the Tribunal dated 19 April 2006 enclosing,

·   letter MCRS to Mrs Ragg of 22 March 2005,

·   Rehabilitation Case Hand-over dated 18 February and 22 March 2005,

·   physiotherapy management plan accepted by MCRS on 8 March 2005.

·Exhibit 11 – letter from Mr Ragg to the Tribunal dated 4 May 2006 enclosing,

·   Mr Ragg’s letter of 20 April 2006 to the Palmerston Physiotherapy Clinic,

·   2 letters “to whom it may concern” of 3 May 2006 from the Palmerston Physiotherapy Clinic,

·   2 medical certificates dated 8 March 2006 and 3 May 2006,

·   letter from MCRS to Mrs Ragg dated 7 February 2006.

·Exhibit 12 – letter from Mr Ragg to the Tribunal dated 8 May 2006 enclosing a letter dated 8 May 2006 from the Palmerston Physiotherapy Clinic.

·Exhibit 13 – letter from Australian Government Solicitor to the Tribunal dated 8 May 2006 enclosing letters from Comcare to Mrs Ragg dated 20 July 2005, 29 September 2005 and 31 October 2005.

37.The material from the respondent’s solicitors goes beyond the scope of the issue in respect of which leave to provide further material was given. Despite that irregularity I propose to have regard to it as Mr Ragg has had an opportunity to deal with the additional material.

38.It is convenient to deal with the respondent’s additional material first. It seems to be directed to establishing the proposition that the respondent cannot now be liable for the cost of hiring a recumbent bicycle because a different Commonwealth agency, Comcare, accepted liability for an aggravation of Mrs Ragg’s neck sprain during the period 2 February 2005 to 31 October 2005. I do not consider that because one Commonwealth compensation agency accepted liability for an “aggravation of a condition” that must mean that the Commonwealth compensation agency with liability for the condition which has been aggravated is somehow relieved of liability for the condition. The correspondence from Comcare within Exhibit 13 establishes, at most, that Comcare has the view that it no longer has any liability because the aggravation of the neck sprain has been resolved. Whether that is right or not does not presently concern me because it says nothing about whether the condition which was aggravated has ceased.

39.If the respondent takes the view that Mrs Ragg no longer suffers from the accepted condition it is open to it to reconsider its earlier determination under s 62 of the SRCA. If it does so, and determines the matter adversely to Mrs Ragg, she will have right if review under the legislation. But that has not happened and, so far as I can tell from the material, there remains a determination that the respondent is liable to pay compensation in accordance with the SRCA in respect of the accepted injury.

40.The evidence satisfies me that there is a present need for Mrs Ragg to use a recumbent bicycle as part of her rehabilitation: see particularly Exhibit 11. That need arises as a consequence of the accepted injury. The treating medical practitioner Dr Tok has a plan that involves physiotherapy; the treating physiotherapist has a plan that involves the use of a recumbent bike.

41.That conclusion is not affected by the fact that in March 2005 the MCRS advised the applicant that the

Rehabilitation Program has now been finalised and your rehabilitation is now closed.

There are, no doubt, differing levels of formality to rehabilitation programs. The SRCA does not define the term in a way that requires any degree of formality. There may well have been a rehabilitation program, prepared and undertaken with a degree of formality by MCRS, that was the subject of the letter of 22 March 2005 contained in Exhibit 10.

42.But I am satisfied that there was also a rehabilitation program, somewhat less formal, undertaken by the Palmerston Physiotherapy Clinic that involves the use of a recumbent exercise bicycle in the context of the discharge of a professional obligation on the part of a physiotherapist to treat Mrs Ragg. The cost of that program has been met, quite properly, by MCRS: see exhibit 9, exhibit 12, T 33 and T 42.

Conclusion

43.It follows that in my view the decision should be set aside and a decision made that the respondent is liable to pay the cost of hiring a recumbent exercise bicycle for a period of 3 months from the date implementation of this decision. The respondent should pay the applicant’s costs, if any.

Postscript

44.After these reasons had been completed I received from Mr. Ragg a letter dated 9 May 2006 which enclosed a letter from the respondent to the Palmerston Physiotherapy Clinic of the same date. That correspondence will be Exhibit 14. That letter, omitting formal parts, was in these terms,

I refer to your proposed treatment program dated 11 April 2006, requesting once weekly physiotherapy from 11 April 2006 to 23 May 2006, plus a twice weekly gymnasium programme for the above-named client.

From the evidence available to me, I am not satisfied in this case that the program is reasonable medical treatment within the terms of Section 16 of the Safety, Rehabilitation and Compensation Act 1988. I have written to Mrs Ragg to advise that I need further medical evidence from a specialist before I can approve the program.

If Mrs Ragg pursues this program without my approval she will be responsible for meeting the cost of the treatment.

45.I am not now concerned with the correctness of the view expressed by the Delegate however I am concerned with the timing of this letter. I had advised the parties in a telephone directions hearing on 20 April 2006 that I was of the view that the matters in s 39 of the Act were made out and that the respondent was liable to pay compensation to the applicant in respect of the costs of hiring a recumbent bicycle, but I raised my concern that some 12 months had elapsed from the original request and that it was not clear that the applicant was still involved in a physiotherapy management plan.

46.The timing of the letter of 9 May 2006 to the Palmerston Physiotherapy Clinic is, at best, unfortunate. On one view it might be seen as an attempt to render nugatory the decision of the Tribunal. Mr Ragg certainly holds that view. I do not need to express any conclusion, nor do I do so. However I do consider that the respondent ought to re-consider the approach outlined in the letter of 9 May 2006 after considering these reasons.  It is, I think, important that persons in the position of Mrs Ragg (and her husband) are not left with the impression that the respondent is acting oppressively towards them.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Leisa Pendle, Associate

Date/s of Hearing  7 April 2006
Date of Decision  12 May 2006 
Appearing for the Applicant       Mr C Ragg           
Solicitor for the Respondent     Australian Government Solicitor