Cassar and Military Rehabilitation and Compensation Commission
[2008] AATA 265
•2 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION AATA [2008] 265
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1327 &
VETERANS' APPEALS DIVISION ) 2007/2565 Re ANGELO CASSAR Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date2 April 2008
PlaceBrisbane
Decision With respect to Matter No 2007/1327, the Tribunal affirms the decision under review.
With respect to Matter No 2007/2565, the Tribunal sets aside the decision under review and substitutes the decision that Mr Cassar is entitled to household services at 20% of the statutory rate provided for in s 29(1) of the Safety Rehabilitation and Compensation Act 1988 with effect from 27 October 2006.
In Matter No 2007/2565, the parties have leave to file submissions in relation to costs within 14 days. In the event that no submissions are filed in that period, then the respondent is ordered to pay the applicant’s costs in accordance with s 67(8) of the Act.
.............................................
SENIOR MEMBER
CATCHWORDS
COMPENSATION – cancellation of payment for attendant care services – are attendant care services reasonably required – compensable and non-compensable injury – rate of payment – decision under review affirmed.
COMPENSATION – cancellation of payment for household services – are household services reasonably required – compensable and non-compensable injury – rate of payment – decision under review set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 29, 67
McDonald v Director- General of Social Security (1984) 1 FCR 354
Bushell v Repatriation Commission (1992) 175 CLR 408REASONS FOR DECISION
2 April 2008 M J Carstairs, Senior Member 1. Mr Angelo Cassar asks this Tribunal to review two decisions cancelling payments for attendant care and for household services that he had been receiving uninterruptedly for over 15 years.
2. The payments are made under s 29 of the Safety, Rehabilitation and Compensation Act 1988. The evident intention of the section is that a person, who has suffered compensable injury which warrants those kinds of assistance in the home, will be paid in accordance with the statutory limits. In Mr Cassar’s case, for the most part these two payments have been made to Mr Cassar’s ex-wife, Mrs Elaine Cassar. They divorced in 1985; however, she has provided him with household services and attendant care on a daily basis for much of the time since then.
3. The Act sets out at s 29(2) and s 29(4) the matters that should be taken into account when deciding whether attendant care and household services are warranted. They must be reasonably required as a result of injury, which makes relevant the consideration: “What are the effects of the injury?” Mr Cassar’s compensable injuries are cervical spondylosis, inguinal hernia, and urticaria, of which, judging by the accounts in medical reports, the most significant is cervical spondylosis.
4. So why is it that after this length of time the respondent now considers Mr Cassar is no longer entitled to these two payments?
The issues
5. In looking at Mr Cassar’s entitlements at the time of cancellation, the issues I must consider are:
§ what services were reasonably required by Mr Cassar as a result of injury?
§ if household services and attendant care were required, what should reasonably be paid?
Background
6. The onset of Mr Cassar’s cervical spondylosis can be dated from the 1970’s, when Mr Cassar was serving in the RAAF. This injury seems to have led to his being discharged on medical grounds at the age of about 45 years. Mr Cassar, now aged 76, has not worked since.
7. There was some suggestion at the hearing that Mr Cassar might never have had the frank injury that he now describes as involving a blow to his head sustained when an emergency door fell on him while he was carrying out repairs on a Caribou aircraft. However it was not part of my task to re-examine the circumstances underlying the acceptance of liability.
8. The extensive medical evidence on file, dating from that time, supports a conclusion that Mr Cassar’s cervical spondylosis resulted in significant restriction to the mobility of his neck. In addition, he complains of constant pain and headaches.
9. Mr and Mrs Cassar married in about 1983 and lived in Melbourne, but after the marriage broke down Mr Cassar moved to the Tweed coast. He later persuaded his ex-wife to join him there and for some years they both lived at Mr Cassar’s house at Banora Point. Mrs Cassar has received the disputed payments at times when she was living at Mr Cassar’s house and since moving into her own home about 3 kms from his about 7 years ago. Mrs Cassar comes daily to Mr Cassar’s home, where she keeps him company, carries out various household tasks, and undertakes other tasks involving personal assistance such as dressing and helping at shower time.
10. The respondent has reassessed the level of payments for Mrs Cassar’s services from time to time in the course of the some 15 years of payment. Sometimes the respondent sought the opinions of occupational therapists, who conducted home visits and prepared reports on Mr Cassar’s circumstances and his need, if any, for care and assistance at home. More recently, the respondent also has commissioned reports from orthopaedic specialists. It should be observed with regard to the latter, that Mr Cassar suffers from a number of musculoskeletal injuries, not all of them compensable. It seems that specialist orthopaedic reports were thought necessary to gain a better understanding of exactly what degree of limitation arose directly from compensable injury, and what might originate from Mr Cassar’s other musculoskeletal conditions. I turn accordingly to examine what can be gleaned from these reports.
Occupational therapist and other specialist assessments
11. Occupational therapist assessments since the mid 1990’s include the following:
§ in 1996, Ms M McKillop prepared a report[1] in which she noted Mr Cassar’s fluctuating symptoms. This and other observations led her to recommend that Mr Cassar be paid a combined amount for personal care and household services for 2.73 hours per day[2]. This recommendation meant that the payments to Mrs Cassar at that time increased from $75 to about $93 per week, but backdated to 1991[3];
[1] T25.
[2] T26.
[3] T 28 and T29.
§ in 2001 Ms J Brown, occupational therapist from the Commonwealth Rehabilitation Service, recommended the two payments continue[4];
[4] T35.
§ in 2005, Ms B Collins identified Mr Cassar as requiring Mrs Cassar’s help with household cleaning, and noted that Mrs Cassar provided other assistance such as meal preparation, and errands. Ms Collin’s commented upon the variable nature of Mr Cassar’s condition and his fluctuating pain levels. Ms Collins concluded that Mr Cassar needed some help, but not the 56 hours per week that Mrs Cassar spent at Mr Cassar’s home;
§ in 2005, Ms B Reich was satisfied that Mr Cassar needed assistance at home[5], and her recommendations appear to have led to two decisions[6]:
[5] T44.
[6] T46 and T47.
(a)one to pay for attendant care payments for 8 hours per week; and
(b)one that Mrs Cassar should be paid the maximum statutory entitlement for household services, which at that time was $343.74 per week[7].
These two decisions meant that the total payments to Mrs Cassar went from some $110 per week to close to $600 per week.
§ in 2006, Ms J Tschirpig assessed Mr Cassar in his home[8]. She took account of Mr Cassar’s complaints of headaches and of constant neck pain, as well as his reduced shoulder and neck movement. She took a careful record of what Mr Cassar said he could and could not do. However, she concluded that the main reason Mr Cassar needed any kind of attendant care or household services was because of non-compensable musculoskeletal conditions (related to his knees and lower back).
[7] Both determinations related to the period 1 July 2005 to 30 June 2006 but the period was extended until 31 August 2006 during the review and then until 27 October 2006.
[8] T74.
12. About the time of Ms Tschirpig’s report, Mr Cassar was seen by Dr S Journeaux, consultant orthopaedic surgeon.
13. Dr Journeaux noted that Mr Cassar suffered the ongoing effects on his neck injury particularly with pain and headaches[9]. These effects were relieved to some extent by the morphine based analgesic Oxycontin, as well as by using a TENS machine and ice packs as required. Dr Journeaux said Mr Cassar’s advanced degenerative cervical disc disease, reduced his range of motion to 20%. Dr Journeaux described Mr Cassar as having multiple musculoskeletal problems, not just from compensable injuries, and these contributed to Mr Cassar’s overall disability. He regarded Mr Cassar’s lumbar spondylosis, bilateral rotator cuff disease and knee problems as presenting a greater impediment than did his cervical spondylosis. Nevertheless, Dr Journeaux thought that cervical spondylosis contributed 20% to Mr Cassar’s inability to undertake household tasks and attend to personal care[10].
[9] T57.
[10] T57 at 152.
14. Dr Journeaux thought that Mr Cassar needed some help with personal hygiene and showering and dressing – in the order of some 10% assistance[11]. But when Dr Journeaux subsequently was asked to comment on Ms Tschirpig’s assessment of, he said her report was comprehensive and he agreed with it[12]. This conclusion was somewhat at odds with the content of his previous report, but as Dr Journeaux was not called to give evidence, no further light can be shed on this apparent shift in his opinion.
[11] T57.
[12] T9, Matter No 2007/2565.
15. Another orthopaedic surgeon, Dr B McPhee, was called upon to report for the purposes of the hearing. The central points of his report were that:
§ Mr Cassar needed two hours assistance per day, on a daily basis, as the time needed for attendant care and household services[13]; and
§ that his cervical spine condition contributed 20% to his overall disability/need for care[14].
[13] Exhibit R1 at 5.
[14] Exhibit R1 at 5.
16. Dr McPhee however did observe that if Mr Cassar had no disability other than cervical spondylosis, he would not need attendant care. In later commentary, Dr McPhee departed from his earlier view, and now stated that Mr Cassar’s need for 2 hours care per day was due to his non-compensable conditions only, whereas in his earlier report he assigned some, although a minor, role to compensable injury as part of Mr Cassar’s need for care.
What services are reasonably required?
17. The provisions in relation to household services are those that relate to services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the household[15]. Section 29(1) of the Act provides that where the compensation recipient obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances. The amount is described in the sub-section as being not less than 50% of the amount per week paid or payable for those services, nor more than a statutory indexed amount[16]. A number of factors are set out at s 29(2) as relevant but not sole considerations.
[15] Safety, Rehabilitation and Compensation of Act 1988 (Cth), s4.
[16] Indexed on an annual basis under s 13 of the Act, currently $365.03.
18. Similarly with attendant care services (defined as services, not of a household, medical or nursing kind, but required for the person’s “essential and regular personal care”[17]) s 29(4) sets out a number of factors for consideration.
[17] Safety, Rehabilitation and Compensation of Act 1988 (Cth), s4.
19. Mr G Mylne, who represented Mr Cassar on the first day of hearing and Ms C Maluish who made submissions on the second day, placed reliance on the Federal Court decision in McDonald v Director-General of Social Security[18] as authority for the proposition that the respondent should not have cancelled Mr Cassar’s payments unless there was evidence that his circumstances had changed. McDonald’s case identifies this as a persuasive burden which may be affected by the nature of the subject matter under review. But it also needs to be borne in mind that this Tribunal’s task is to reach the correct and preferable decision according to the material before it[19].
[18] (1984) 1 FCR 354.
[19] Bushell v Repatriation Commission (1992) 175 CLR 408
20. In that regard, and looking more broadly at the decision-making as taking place in Mr Cassar’s case, it cannot escape comment that the decision in 2005 increasing the total payments to almost $600 per week was plainly wrong and unsupported by the available evidence. I note that even Mr Cassar expressed surprise at the unexpected increase of the payments in 2005[20]. Until then there had been only slight adjustments to the rates of the two payments, such as would accord with cost of living increases[21]. I consider as being correct counsel for the respondent, Ms E Ford’s submission that the decision in 2005 was based upon a report which failed to distinguish between the effects of compensable and non-compensable injury or disease.
[20] T49.
[21] T20, T28, T40, T46 and T47.
21. Whilst the decision made in 2005 is not the matter under review before me, I would observe that McDonald’s case is not apt, in these circumstances, to in some way preserve an entitlement to the effects of a plainly wrong decision. The respondent’s actions in seeking reports in 2006 provided a better basis for decision-making. The additional reports offer a more precise outline of the contribution of compensable and non-compensable disability to his need, if any, for household and attendant care.
22. Turning then to the factual matters under review, concerning the cancellation of these two payments, I would firstly observe that I was satisfied that Mr and Mrs Cassar have at all times tried to give an accurate account of what Mrs Cassar undertakes on Mr Cassar’s behalf, and to describe what Mr Cassar can and cannot do. As I understand Mr Cassar’s evidence, the disabling combination of headaches and neck pain leads to his limitations at home. He observed that medication might dull his pain, but pain nevertheless remains a constant in his life, and leaves him without motivation.
23. Looking then at what Mr Cassar said he can do, he said that he spends much of his day fishing from a pontoon at the back of his house; pottering in his garden; and feeding the birds. Fishing is within his physical capabilities, as he side-casts with a rod to avoid troubling his neck. Furthermore, Mr Cassar has admitted readily that he can undertake lawn mowing sometimes, but not others. He clearly obtains some pleasure from attending to his garden. He pointed out in his evidence that, with regard to a number of tasks, he finds them hard to do rather than being unable to do them.
24. With regard to those household matters which might involve using a car, Mr Cassar said he relies on Mrs Cassar to drive him places as his limited neck movement makes it hard for him to drive safely. Ms Cassar said she mostly shops for him, except if he needs to sign or use a credit card. Dr Journeaux confirmed that Mr Cassar’s cervical spondylosis would prohibit him driving[22]. In fact Mr Cassar does drive if Mrs Cassar is not around to do so, and has his vehicle fitted with a reversing alarm that overcomes some of the problems arising from his limited neck movement.
[22] T57 at 151.
25. With regard to those household matters which might involve using a car, Mr Cassar said he relies on Mrs Cassar to drive him places as his limited neck movement makes it hard for him to drive safely. Ms Cassar said she mostly shops for him, except if he needs to sign or use a credit card. Dr Journeaux confirmed that Mr Cassar’s cervical spondylosis would prohibit him driving[23]. In fact Mr Cassar does drive if Mrs Cassar is not around to do so, and has his vehicle fitted with a reversing alarm that overcomes some of the problems arising from his limited neck movement.
[23] T57 at 151.
26. Neither Mr Cassar nor Mrs Cassar suggested that Mrs Cassar was fully occupied at all times while present at Mr Cassar's house. Mrs Cassar told Ms Tschirpig in 2006 that the care she provided would take her about 3 hours per day. Mr Cassar said in evidence it would be about 3 – 4 hours, and for the rest of the time Mrs Cassar sits and reads or knits, or comes and goes attending to her own affairs.
27. In accepting that Mr and Mrs Cassar try to give an honest account of themselves and what they do, their evidence nevertheless was not entirely consistent with respect to the tasks undertaken, particularly with details concerning attendant care (for instance, with regard to whether Mrs Cassar assists shampooing Mr Cassar’s hair). However, I did not consider these minor variations in their evidence meant that their accounts were unreliable in any more fundamental sense.
28. Nevertheless, the evidence of what is done on a person’s behalf is only part of the picture, and will not of itself necessarily reflect what is “reasonably required” – the test addressed in s 29 of the Act. In regard to that test, I was satisfied that the detailed account of domestic and self care tasks set out in Ms Tschirpig’s report was an accurate account. The report incorporated information from Mr and Mrs Cassar and she applied her professional observations, both with respect to whether that care was needed, and whether any need was explained by the compensable injury. There was little in Ms Tschirpig’s report that departed meaningfully from what Mr and Mrs Cassar told me in oral evidence about what he requires to have done for him and what Mrs Cassar undertakes on his behalf. I note in that regard that Mr Cassar was given the opportunity to comment on any matters that he regarded as incorrect in Ms Tschirpig’s report, but nothing that he raised went to a matter of substance, in any way critical to the matters that I must decide.
29. Ms Tschirpig, in the course of her home assessment, had asked Mr Cassar to demonstrate how he managed a number of self-care tasks. She suggested modifications to a number of tasks that, if adopted, might lead to greater self reliance. That clearly fell within her area of expertise and I accept the evidence in her report in that respect.
30. I found myself in agreement with Dr Journeaux’s comment that Ms Tschirpig’s report was very comprehensive. However, I do not accept Ms Tschirpig’s ultimate conclusion that the reason that Mr Cassar requires care solely explained by non-compensable injuries. I regard her detailed observations of Mr Cassar in his home environment as more helpful on the matters directed at care in the home, but I found helpful the reports of the orthopaedic surgeons for addressing overall assessment of the relative contribution of compensable and non-compensable medical conditions.
31. I was satisfied, with regard to the need for household services that Mr Cassar requires some assistance. The evidence from the orthopaedic surgeons satisfies me that there is some contribution to his overall need that is the result of his compensable injury, in particular cervical spondylosis. Both surgeons state in their evidence that it is in the order of 20%. I do not regard the reversal of those views in their written reports – concluding in effect that significant level of degenerative cervical spondylosis did not have effects on his ability to carry out household tasks – as soundly based.
32. I accept Mr Cassar’s evidence that he experiences pain regularly and that it is disabling for him. The medical evidence is that he has marked restriction of neck movement, reduced by at least 70%. This, combined with his age makes hard a number of household tasks. I accept as correct Dr McPhee’s comment at the hearing that whether a person requires assistance as a result of disability depends on personality and a person’s coping mechanisms. There was ample medical evidence that Mr Cassar does not cope well with his level of neck disability or with his experience of pain.
33. In coming to the conclusion that the evidence supports Mr Cassar’s entitlements under s 29(1) of the Act, I had regard to the matters in s 29(2). Few are directly applicable in Mr Cassar’s case. They look to the question of who else in a household could be expected to be undertaking the tasks that the injured person is not able to do. In that regard I am satisfied (as was the delegate[24]) that Mrs Cassar is not a member of Mr Cassar’s household. Mr Cassar does not have household members to turn to for assistance; there are no family members nearby.
[24] T92.
34. I would observe – in relation to s 29(2)(a) – that there was no evidence about household services Mr Cassar provided before his injury 30 years ago. However, I regard as relevant to the consideration of whether Mr Cassar reasonably needs household services that a 76 year-old person with significant restriction of neck movement will be less able to manage household tasks than a younger person with the same the level of neck disability.
35. Mr Cassar said that he can do little around the house. I doubt that that he is as limited as he believes. I was satisfied that that there are a number of things that Mr Cassar chooses not to do because Mrs Cassar is there to do them for him. They are in a comfortable routine not all of which is based on need. This seemed to be especially the case with respect to meal preparation and managing aspects of personal care. Nevertheless, I concluded that 20% should be ascribed as the contribution for the need for household services arising from compensable injury. In so deciding I took into account that Mr Cassar receives an hour of household help per fortnight from the Department of Veterans’ Affairs quite apart from Mrs Cassar’s assistance. However I do not think that one hour per fortnight addresses the range or extent of household help required. Accordingly, I concluded that the decision to cancel the payment for household services with effect from 27 October 2006 was not correct and for it I would substitute the decision that Mr Cassar was entitled to payment at 20% of the statutory rate provided for in s 29(1) of the Act.
36. With regard to attendant care, I was not satisfied that Mr Cassar reasonably requires attendant care services as a result of his compensable injury. I came to that conclusion having heard the evidence of the personal care given by Mrs Cassar which amounts to little more than some assistance provided with showering, and drying. Mr Cassar can and does attend independently to shaving and shampooing his hair. I accept Ms Tschirpig’s evidence that Mr Cassar can safely transfer in and out of the shower; Mr Cassar did not suggest otherwise. I accept from Ms Tschirpig’s report that when asked to demonstrate what he does when showering, she concluded that he would be able to dry himself without observable difficulty. I also accept her conclusions that adopting different techniques of dressing, as well as styles of clothing would overcome the few problems that Mr Cassar experiences with dressing, for which he presently relies in part upon Mrs Cassar’s assistance. That evidence satisfies me that Mr Cassar does not reasonably require attendant care, that is, care required for essential and regular personal care.
37. With regard to the matters set out in s 29(4) of the Act, the most relevant for consideration in Mr Cassar’s case was s 29(4)(a) as this addresses the question of the degree to which compensable injury impairs ability to provide for personal care. With respect to that question, the orthopaedic evidence was quite clear that cervical spondylosis is not as significant as Mr Cassar’s other musculoskeletal disorders. Dr McPhee made plain that cervical spondylosis would have minimal effect on Mr Cassar undertaking the tasks contemplated under this heading.
38. I considered whether some allowance should be made under this heading for Mrs Cassar taking Mr Cassar monthly to attend a picnic organised by the Maltese Association. However on balance I was not satisfied that this had the sufficient regularity as to come within the intention of the legislative provision which looks to “essential and regular personal care”[25]. For these reasons I was satisfied that the decision to cancel the payment for attendant care was correct.
[25] Safety, Rehabilitation and Compensation of Act 1988 (Cth), s4.
39. I would observe, as a final matter, that there was no evidence to suggest that Mr Cassar’s urticaria or hernia have any effect on his need for either kind of care in the home.
DECISION
40. With respect to Matter No 2007/1327, the Tribunal affirms the decision under review.
With respect to Matter No 2007/2565, the Tribunal sets aside the decision under review and substitutes the decision that Mr Cassar is entitled to household services at 20% of the statutory rate provided for in s 29(1) of the Safety Rehabilitation and Compensation Act 1988 with effect from 27 October 2006.
In Matter No 2007/2565, the parties have leave to file submissions in relation to costs within 14 days. In the event that no submissions are filed in that period, then the respondent is ordered to pay the applicant’s costs in accordance with s 67(8) of the Act.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the order herein of M J Carstairs, Senior Member
Signed ……………………………………
Joan Torbey, AssociateDates of Hearing 3 March 2008 and 17 March 2008
Date of Decision 2 April 2008
Solicitors for the Applicant Mylne Lawyers
Counsel for the Respondent Ms E Ford
Solicitors for the Respondent Spake Helmore Lawyers
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