Schmied and Comcare

[2003] AATA 434

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 434

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/1002

GENERAL ADMINISTRATIVE DIVISION

Re:         STEVEN ANTHONY SCHMIED

Applicant

And:       COMCARE

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             13 May 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.   

(sgd) G.D. Friedman

Member

COMPENSATION - injury to shoulder whilst riding mountain bicycle ‑ whether medical or therapeutic treatment

Safety, Rehabilitation and Compensation Act 1988 ss4(1), 14(1), 16(1)

Comcare v Watson (1997) 73 FCR 273

Thiele v Commonwealth (1990) 22 FCR 342

REASONS FOR DECISION

13 May 2003  G.D. Friedman, Member

1.      This is an application by Steven Anthony Schmied (the applicant) for review of a decision of a delegate of Comcare (the respondent) dated 28 August 2002.  The delegate affirmed a determination of the respondent dated 15 April 2002 to reject the applicant’s claim for compensation for a soft tissue and ligament damage to the AC joint - left shoulder.  

2.      At the hearing of this matter on 5 May 2003 Mr B. Turner, an advocate with the Returned & Services League of Australia, represented the applicant and Mr M. Croyle of counsel represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T25), together with four exhibits (Exhibits A1‑A4) tendered by the applicant and one exhibit (Exhibit R1) tendered by the respondent.

BACKGROUND

4.      The applicant was born on 12 July 1971 and enlisted in the Australian Army on 14 December 1992.  At the relevant time he served in the Directorate of Logistics Program Management - Air Force in Melbourne with the rank of Captain, and was discharged on 10 December 2001, when he transferred to the Inactive Army Reserve.  In 1994 the applicant injured his right knee in the course of his service, and the respondent accepted liability for this condition.

5.      On 1 April 1997 the applicant suffered a hyperextension injury to his left shoulder while surfing (the surfing injury).  On 17 July 1999 he suffered soft tissue and ligament damage to his left shoulder while riding a bicycle at Eastern View, Victoria (the bicycle injury).  On 2 September 1999 the applicant lodged a claim for compensation for soft tissue and ligament damage, AC joint separation and fracture of collarbone sustained in the course of service.  On 20 June 2000 the respondent determined that it was not liable to pay compensation to the applicant for soft tissue and ligament damage to AC joint on the grounds that the incidents that caused the injury were not part of a service-authorised sporting activity and he was not on duty at the time of the incidents. 

6.      On 18 July 2000 the applicant requested a reconsideration of the determination and lodged additional information to support his claim that mountain bicycle riding was part of a rehabilitation program planned by his physiotherapist in conjunction with his orthopaedic surgeon and general practitioner in respect of his compensable right knee condition.  On 21 February 2001 the respondent affirmed the decision on the basis that the injury to the left shoulder did not result from an activity that was part of a rehabilitation program for the applicant’s right knee condition. 

7.      On 7 March 2002 the applicant lodged a further claim for compensation for the condition soft tissue and ligament damage of AC joint - left shoulder.  On 15 April 2002 the respondent determined that the additional material did not amount to substantial new evidence and refused the claim.  On 31 July 2002 the applicant requested a reconsideration of the determination dated 15 April 2002, and on 28 August 2002 the respondent affirmed the determination.  On 19 September 2002 the applicant lodged an application with the Tribunal for review of the decision.

EVIDENCE

8.      In his Statement of Claim for Left Shoulder dated 22 November 1999 (T4) the applicant stated that the bicycle injury was sustained in the course of his rehabilitation for a right knee reconstruction and strengthening for degeneration of his knee.  In the Accident or Incident Report (the Accident report) (T7) submitted by the applicant on 24 January 2000 he stated that the incident happened on a fire access trail, Eastern View, Victoria, when he was:

…

Riding a mountain bike as part of the rehabilitation program for a knee reconstruction, I clipped a tree and fell on to my shoulder.

A helmet, gloves, and boots were being worn for personal protection.

9.      In an outpatient clinical record dated 19 July 1999 (T8), an entry by a medical officer states:

(L) shoulder injury from mountain bike fall [two days] ago on track.  Went over handlebars.  …

10.     In a further outpatient clinical record dated 15 September 1999 (T8) another medical officer noted:

…

Struck tree while mountain bike riding [nine weeks] ago - struck [with right] shoulder: over handlebars … [hitting the] ground

11.     In his request for reconsideration dated 19 December 2000 the applicant said that the bicycle injury, rather than the surfing injury, caused the injury to his AC joint.  He stated (T11):

…I believe my mountain biking exercise was part of a rehabilitation program planned by my physiotherapist(s) in conjunction with my doctor(s) and orthopaedic surgeon for another Commonwealth liable injury, namely my right knee injury, and thus was part of my military service.  …

12.     In the additional information provided by the applicant in support of his claim on 27 January 2000 (T8), he stated that the injury occurred on a weekend so he was off-duty at the time.  He said that there was no routine order specifying the bicycle riding as a service-authorised sport, as it was part of the seven-days-per-week rehabilitation program that included bicycle riding.

13.     In relation to the bicycle injury the applicant gave oral evidence that he was riding his bicycle in an urban coastal area near his parents’ house in the vicinity of Airey’s Inlet, Great Ocean Road.  He said that the bicycle was not a genuine mountain bicycle because it did not have shock absorbers.  He described it as a hybrid, with wider tyres than a track bicycle and straight (rather than curved) handlebars.  He said that the area was a mix of sealed and unsealed road.  On the day in question he was riding on a flat unsealed road in a developed area, which he described as safer than the sealed Great Ocean Road, because of the large amount of vehicular traffic on the latter road.

14.     The applicant explained that as he was wearing walking boots at the time he prepared to go for a ride he did not change into other footwear, although he normally wore cross-trainers or lightweight footwear while cycling.  He also wore a helmet and gloves.  The applicant said that he was riding slowly about two metres from the edge of the road when the front wheel of the bicycle slipped out of place on the gravel surface, possibly after hitting a loose stone, and he fell sideways on the gravel, injuring his left shoulder.  He stated that there were no vehicles or pedestrians around, and no witnesses.

15.     Under cross-examination, the applicant conceded that his oral evidence contradicted the written descriptions of the bicycle injury contained in the Accident Report and in the written comments by the medical officers.  He explained that he clipped the tree and fell sideways after the front wheel of the bicycle slipped out of place, rather than beforehand.  He denied that he was catapulted over the handlebars, and said that the entries by the medical officers were incorrect.  He stated that a fire access trail had the same meaning as his description of the road as a flat, unsealed road in a developed area.  He agreed that gloves, helmet and boots might be worn for protection by a cyclist intending to ride through rough country, but he said that he always cycled on roads because his knee was too weak to withstand the rigours of riding through bushland. 

16.     The applicant maintained that he was directed by his orthopaedic surgeon and others to engage in regular cycling as part of his rehabilitation, and that he discussed the nature of the cycling, including appropriate equipment, at all times.  He agreed that there was no written plan, but stated that the orthopaedic surgeon was providing verbal direction and supervision. 

17.     In a written statement dated 23 April 2001 (Exhibit A2), Mr S. Doig, orthopaedic surgeon, said that the applicant was advised that cycling would be of considerable benefit to him in his rehabilitation from an anterior cruciate reconstruction of his knee.  In a letter to the applicant dated 13 December 2001 (Exhibit A3) Mr Doig stated: …It is completely appropriate to be doing exercises over the weekend.  In a further a letter to the applicant dated 13 November 2002 (Exhibit A4) Mr Doig stated:

…Because of the ongoing problems that you had with your knee I consider that ongoing rehabilitation particularly in the form of road cycling would provide some substantial benefits for your knee.  I consider that riding a mount[ain] bike on the weekends would be an [integral] part of the program.

18.     In a written report dated 2 May 2003 (Exhibit R1) Mr M. Shannon, orthopaedic surgeon, stated that he examined the applicant at the request of the respondent on 30 April 2003.  Mr Shannon stated that the shoulder injury relates to a fall from a bicycle.  He said:

…

Cycling is an excellent form of treatment for post-operative knee stiffness, and a form of treatment that I routinely recommend.

It is certainly not inappropriate for him to be cycling every day, including at weekends.  Whether riding a mountain bike is within what one would regard as a normal rehabilitation program is a matter of judgement, and not really an orthopaedic matter.

CONSIDERATION OF THE ISSUES

19. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides:

14(1)       Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.  

Section 16(1) of the Act provides:

16(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 defined in s4(1) of the Act to mean, among other things:

4(1)        In this Act, unless the contrary intentions appears:

(a)…

(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner; …

Therapeutic treatment in turn is defined in the same section as including:

Includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury.

20. Mr Croyle noted that the applicant was not relying on mountain bicycle riding as part of an approved rehabilitation program, but was seeking to include the effect of the bicycle injury on the applicant’s shoulder as part of medical treatment which was reasonable for him to obtain under s16(1) of the Act. Mr Croyle referred the Tribunal to Comcare v Watson (1997) 73 FCR 273 in which Finn J cited Thiele v Commonwealth (1990) 22 FCR 342 on the meaning of therapeutic treatment.  In Thiele at p348 Hill J stated that provision of a swimming pool in the circumstances of that case ....does not become treatment merely because it is advised, prescribed or ordered by a medical practitioner.

21.     In Watson at p276 Finn J concluded:

…

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. …

22.     Mr Croyle submitted that exercise by means of cycling using a stationary bicycle was a desirable part of the applicant’s rehabilitation process.  However, he said that on the facts of the matter the applicant had engaged in riding a mountain bicycle in such a way that the circumstances of his fall and subsequent shoulder injury were far beyond an activity that could be defined as therapeutic or medical treatment under the Act.  Mr Croyle noted the contradiction in the versions of the bicycle injury given by the applicant, and stated that the applicant was reconstructing the circumstances in an attempt to assist his claim.

23.     Mr Turner submitted that the applicant’s rehabilitation program was devised and supervised by medical and other professionals, and had included road cycling as an appropriate component.  He said that for this reason the bicycle injury should be considered as medical treatment under the Act.

24.     In reaching its decision, the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

25.     The Tribunal finds that the applicant presented as an unconvincing witness.  The Tribunal agrees with Mr Croyle that the version of the bicycle injury given by the applicant in the Accident Report, prepared before the commencement of these proceedings, is more likely to be accurate than the version given by the applicant in oral evidence, particularly as the applicant could provide the Tribunal with no explanation for the written comments by two medical officers about the applicant being thrown over the handlebars of the bicycle.  The Tribunal does not accept that a fire access trail in the Accident Report necessarily has the same meaning as a flat unsealed road in a developed area, as stated in oral evidence, particularly in view of the written comment by a medical officer referring to the fall on track..  The Tribunal finds implausible the applicant‘s oral evidence that he was riding slowly about two metres from the edge of the road, yet a stone caused him to fall sideways and clip a tree after the wheel slipped.  The Tribunal notes that the applicant did not mention the tree in his evidence-in-chief, and that in the Accident Report the applicant stated that he was wearing a helmet, gloves and boots for personal protection.

26.     The Tribunal is reasonably satisfied that the bicycle injury occurred when the applicant was riding a mountain bicycle on a fire access trail on uneven terrain, rather than on an unsealed road in a developed area. The Tribunal is also satisfied that he was travelling at a sufficient speed so that, when he clipped a tree, he was thrown over the handlebars, and injured his shoulder.  The Tribunal agrees with the submission by Mr Croyle that this activity went beyond any reasonable cycling component of a rehabilitation program devised by medical and other professionals.

27. For these reasons, the Tribunal finds that the riding of the mountain bicycle in the circumstances of the bicycle injury does not constitute therapeutic treatment or medical treatment as defined in the Act. Therefore, the applicant does not satisfy s16(1) of the Act, and there is no liability for the respondent to pay compensation to the applicant.

DECISION

28.     The Tribunal affirms the decision under review. 

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  5 May 2003
Date of decision:  13 May 2003

Advocate for applicant:                Mr B. Turner, Returned & Services League of Australia

Counsel for respondent:              Mr M. Croyle
Solicitor for respondent:              Australian Government Solicitor