Townley and Comcare-Defence

[2004] AATA 252

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 252

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/442

GENERAL ADMINISTRATIVE DIVISION		)
Re		Ronald Edward Townley

Applicant

And Comcare-Defence

Respondent

DECISION

Tribunal SP Estcourt QC, Deputy President

Date11 March 2004

PlaceAdelaide

Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that it was reasonable in the circumstances of the applicant’s case for him to obtain medical treatment in the form of a spa for home use.

S.P Estcourt QC

(Signed)

Deputy President

CATCHWORDS

COMPENSATION - Commonwealth employees - medical expenses - applicant sought payment in order to install a home spa - whether provision of a home spa is "medical treatment" - whether it is reasonable for the applicant to obtain a home spa or whether it is reasonably required by the applicant

Safety, Rehabilitation and Compensation Act 1988, ss4, 16(1), 39(1)

Re Payne and Comcare (1997) 48 ALD 733

REASONS FOR DECISION

11 March 2004 SP Estcourt QC, Deputy President         

1.      This is an application to review a decision of the respondent of 19 June 2003 affirming a determination of 2 April 2003 which denied the applicant’s claim for the purchase of a spa “as medical treatment.”

2. It is not argued by the respondent that a spa is not a “curative apparatus” within the meaning of s16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) and thus “medical treatment” within the meaning of s4(1).

3.      The issue before the Tribunal is whether the spa was medical treatment that was “reasonable for the employee to obtain in the circumstances” (s16(1)).

4.      The applicant purchased the spa on 11 April 2003 to assist with the relief of symptoms of back pain which he suffers as the result of a degenerative lumbo-sacral segment in his spine.

5.      The cost of the spa was $13,990 which was provided by the applicant from his own funds.

6.      Prior to the purchase of the spa orthopaedic surgeon Dr Osti had written is a report dated 6 March 2003:

“I have advised him that surgical intervention for his established degenerative lumbo-sacral segment would have a 70% probability of relieving his back symptoms and would expose him to a risk of complications which I have quantified to him at present at 3%.

He is well aware that the only justification for the risk of surgery is his own perception of disability.

I have encouraged him to continue to perform gentle exercise and I would have no objections with him using a spa for the purpose of muscle relaxation and symptomatic relief.

Passive treatment, however, is unlikely to be beneficial for him in the long term.”

7.      In a report tendered to the Tribunal of 15 February 2004 Mr Osti said:

“I had expressed the view that there was no medical contra-indication for Mr Townley to use a spa for he felt that said equipment was beneficial for his symptoms.

It would, therefore, be incorrect to state that I recommended that Mr Townley purchase a spa for treatment of his injuries.

It would be up to Mr Townley to decide if a spa may be beneficial for his symptoms as the only effect that this equipment may have would be the temporary relief of his subjective complaints…”

8.      In a report dated 19 November 2003 the applicant’s general practitioner Dr Uttam Gaekwad said:

“Only massage and physio have provided Ron with some relief from his chronic back condition over the last year, but their benefits were only temporary. He would require almost daily visits to significantly help him manage the situation but this is not practical or economical.

Ron’s use of a Spa on a daily basis however has virtually eliminated his need for this form of treatment and helped more significantly than they were able to.

Other benefits from the use of the Spa has been that the amount of pain relief tablets that he was dependent on has been significantly reduced from 8 per day to 2 per day. It has improved his sleeping patterns and also helped Ron to reduce the stress associated with the condition and therefore provide corresponding health benefits.

…

I therefore support and recommend Ron’s continued use of his home spa as an economical and effective way for him to manage the pain, provide muscle relaxation and help relieve the stresses resulting from his back condition.”

9.      Prior to the purchase of the spa the applicant had undertaken numerous treatment modalities including sitting aids, cushions, supports, braces, massage, physiotherapy, gym, steroid injections, swimming, chiropractor and pain killers.

10.     The applicant had found prior to purchasing the spa that the longest period of relief from his pain was about 4 hours whereas now he can go from day to day without a high level of symptomatology by daily and twice daily use of the spa.

11.     The applicant also swims twice a week for about 20 minutes at a time but he said that if he misses swimming it does not make a difference to his symptoms. On the other hand his unchallenged evidence was that if he goes without the use of the spa for several days it takes about 2 weeks to get his pain back to a manageable level.

12.     As a result of the use of the spa the applicant no longer requires physiotherapy and his use of pain killers has reduced by an appreciable amount.

13.     It was suggested by the respondent that there were reasonably available alternatives to a home spa however the applicant said and I accept that he had tried the typical spas available at gyms and swimming pools and that they were just like “big hot baths with bubbles.” The spa that he purchased after trying about 6 different ones over a two week period in various showrooms fitted his back comfortably and combined heat and massage with pressure point therapy and buoyancy which in many respects mimicked what physiotherapists do.

14.     Moreover the applicant said that he uses the spa for about 15-20 minutes when he needs it and that can occur at all sorts of hours, for example 9.00 pm on the evening before the Tribunal hearing.

15.     The applicant’s unchallenged and uncontradicted evidence was that the use of the spa actually reduces his pain, helps with sleeping problems, has reduced stress levels caused by the need to deal with continuous pain and has extended his working capabilities.

16.     The applicant’s unchallenged and uncontradicted evidence was that there were no other treatments that he had tried that work as effectively.

17.     In all of the circumstances I am of the view that the purchase by the applicant of a spa for use at home was medical treatment that was reasonable for him to obtain at the time at which he did.

18.     Dr Osti may well be correct when he says that passive treatment is unlikely to be beneficial to the applicant in the long term, but it is plain that he is referring to the underlying physical condition of the applicant’s spine. The fact that the justification for surgery in Dr Osti’s view is the applicant’s own perception of disability makes it reasonable in my view to have treatment which is “beneficial for his symptoms” as Dr Osti puts it, even if  he describes that as “temporary relief of his subjective complaints.”

19.     The applicant is only 39 years old and the spa has provided him reasonable relief from his symptoms of pain and discomfort for almost a year now. It is entirely conceivable that it will continue to be of benefit  in the long term and given that the necessity for surgery depends on the applicant’s perception of his own level of disability it may obviate that necessity indefinitely.

20.     The decision of the Tribunal is that the decision under review is set aside and the matter is remitted to the respondent with a direction that it was reasonable in the circumstances of the applicant’s case for him to obtain medical treatment in the form of a spa for home use.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of SP Estcourt QC, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  10 March 2004
Date of Decision  March 2004
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr M. Roder
Solicitor for the Respondent     AGS