Cavanagh and Comcare (Compensation)

[2017] AATA 3057

Cavanagh and Comcare (Compensation) [2017] AATA 3057 (29 September 2017)

Division:GENERAL DIVISION

File Number(s):      2016/1103

2016/1104

2016/1195

Re:Susan Cavanagh

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:29 September 2017

Date of

written reasons:      28 February 2018

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter:-

The Tribunal affirms the decision under review in matter 1103 of 2016;

The Tribunal, in matter 1104 of 2016:

(1)sets asides the decision under review and determines in lieu thereof that the applicant reasonably requires a total of six hours per week of household services under s 29(1) of the Safety, Rehabilitation and Compensation Act 1988 and reasonably requires a total of two hours of attendant care services under s 29(3) of the Act; and

(2)remits the matter to the Respondent for recalculation of the amounts payable to the Applicant under s 29(1) and (3) as a result of the order made in (1) above;

The Tribunal affirms the decision under review in matter 1195 of 2016.     

...............................[SGD].................................

Senior Member N A Manetta

CATCHWORDS

COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – claim for cognitive impairment – no medical opinion supporting link between employment injuries or medication and impairment – necessity for inferences to be supported by appropriate evidence – decision affirmed – travel claim – spouse travel – no liability in Comcare to pay for spouse’s travel under s 16 – consent determinations in this Tribunal allowing spouse travel not binding – decision affirmed – household and care-attendant services – number of hours increased by reference to the facts – decision set aside and new hours determined and substituted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 – ss 16, 29

CASES

Langham v The Commonwealth (1984) 5 FCR 284

REASONS FOR DECISION

Senior Member N A Manetta

29 September 2017

1. After the delivery of my oral decision and reasons, I received a request for written reasons, which I now publish.

2. Ms Susan Cavanagh has filed three applications in this Tribunal seeking a review of decisions taken by responsible officers within Comcare. The decisions concern Comcare’s liability under the Safety, Rehabilitation and Compensation Act 1988 (the Act) to make compensation payments to her.

3. On 22 December 2015, Comcare denied liability for Ms Cavanagh’s cognitive impairment, which is admitted to be a condition from which Ms Cavanagh suffers. That matter is No. 1103 of 2016. Secondly, Ms Cavanagh challenges a refusal by Comcare on 1 March 2016 to reimburse the cost of her husband’s travel to hospital on various occasions. On these occasions, Mr Cavanagh travelled separately. That matter is No. 1195 of 2016. Thirdly, on 24 December 2015, Comcare denied liability for certain household services and attendant-care services claimed by Ms Cavanagh. That matter is 1104 of 2016.

4. At the hearing before me, Ms Cavanagh’s husband, Mr Roger Cavanagh, appeared as her advocate; Mr Cole appeared for Comcare. The three applications were heard together.

   SUMMARY OF CONCLUSION

5. In my opinion, taking each of the three applications in the order in which I have listed them above, I decide on the basis of the evidence before me that Ms Cavanagh’s cognitive impairment has not been caused by the workplace injuries she has suffered or the medication she has taken in respect of those injuries. It is, therefore, not compensable. I affirm the decision under review in that matter.

6. In respect of the claim for reimbursement of Mr Cavanagh’s travel costs, I find that these are not compensable under the Act, and I affirm the decision under review.

7. In respect of the third matter, I find that in addition to the one hour per week of household services presently received by Ms Cavanagh, she is entitled to a further five hours per week of household services and in respect of personal attendant-care services, I find she is entitled to two hours per week of such services. Accordingly, I shall set aside the decision in that matter, and substitute a decision to reflect the additional hours that I have just indicated.

8. I now turn to set out the background facts and the reasons for my decisions.

   BACKGROUND FACTS

9. Ms Cavanagh’s most unfortunate personal history is as follows. She was born in 1950 and is now 67 years of age. In 1972, Ms Cavanagh suffered an injury at the Canberra Hospital where she was employed as a nurse. She was required, unaided, to lift and move a patient in bed. There was neither machinery nor any male attendant to assist her with the task. Within 24 hours she found she could not get out of bed, such was her pain. Her claim for compensation at the time was accepted. Her back did not improve, however. It was decided that she needed an X-ray. The X-ray procedure involved the use of a contrast dye that was injected into her spine. The name of the dye was “Myodil”. Ms Cavanagh reacted adversely to the dye, but she did eventually recover. She resumed her work at the Canberra Hospital.

10. Unfortunately, on her return to work, she was pushed up hard against a lift-bar, and she reinjured the same area of her back. She was given an X-ray, which involved the use of Myodil, to which, once again, she reacted adversely.  She was readmitted to hospital, and attempts were made to remove the dye from her system through a number of lumbar punctures.

11. Ms Cavanagh developed meningitis, encephalitis, and arachnoiditis as a result. The last-mentioned condition is of particular relevance to the proceedings before me. Arachnoiditis may be described as an inflammation of the spinal cord, which causes disabling pain. Whether Ms Cavanagh’s arachnoiditis was caused by the Myodil dye administered to her or whether it arose from some other cause is not strictly relevant to the claims before me. Comcare has accepted that the condition has arisen, directly or indirectly, from the injuries Ms Cavanagh suffered at the Canberra Hospital and that it is obliged to pay compensation in respect of the condition. No issue arose before me in respect of that finding.

12. Ms Cavanagh ceased work at the Canberra Hospital and did not resume her work there. She left Canberra in 1977 or thereabouts and moved to Adelaide. She was employed in Adelaide in mainly typing and office-administration roles. I need not set out the details of her employment history as they are not relevant to the claims before me.

13. In 1993, she definitively ceased paid work. At this time, an implant which had been placed in her back to assist her with her pain had to be removed because of a serious infection. On the removal of the implant, Ms Cavanagh found the pain she had earlier suffered returned.

14. The next year of her life saw her living with her husband on Neptune Island, and, from the late 1990s onwards, she lived in regional South Australia.  Approximately three and a half years ago, Ms Cavanagh and her husband moved to Curramulka, approximately 19 km out of Minlaton on the Yorke Peninsula. They rent a house on a farm property there.

15. The severe pain Ms Cavanagh experiences in her daily life was controlled for some time by very large doses of an opioid called MS Contin (administered at a rate of 240 mg per day). That dose was recommended to her by Associate Prof Cherry at the Flinders Medical Centre. After Prof Cherry’s retirement and after she had had a disappointing experience with his successor, the supervision of Ms Cavanagh’s case was transferred to the Royal Adelaide Hospital, where she consulted a Dr Briscoe. I think it is fair to say that Ms Cavanagh had more faith in Prof Cherry and had a better rapport with him. Dr Briscoe encouraged Ms Cavanagh to reduce her opioid medication. Dr Briscoe’s principal reason for making that recommendation was her belief that high doses of MS Contin entailed a much greater risk of respiratory failure. Ms Cavanagh had been admitted to hospital on a number of occasions from 2010 onwards with Type II respiratory failure brought on, in part, by the high dose of MS Contin she was taking.

16. It is convenient at this point to summarise those conditions in relation to which Comcare accepts it is liable to pay compensation and those conditions where it denies liability:

    ·First, Comcare accepts liability for Ms Cavanagh’s arachnoiditis;

    ·Secondly, Comcare accepts liability for an aggravation of Ms Cavanagh’s lung condition and Chronic Airway Obstruction Disease brought on through the use of high doses of opioid medication;

    ·Thirdly, Comcare asserts it is not liable, however, for the severe cognitive impairment from which Ms Cavanagh suffers. Comcare has rejected the hypothesis that Ms Cavanagh’s cognitive impairment may have been caused by the opioid medication she had taken for many years.

    LIABILITY FOR COGNITIVE IMPAIRMENT

17. I turn now to consider whether Comcare is liable for the cognitive impairment from which Ms Cavanagh undoubtedly suffers. The evidence Ms Cavanagh gave to the Tribunal which I accept – and I note it was corroborated by Mr Cavanagh – is that Ms Cavanagh suffers from short-term memory loss, has difficulty recognising people, and cannot be trusted to monitor and take her own medication.

18. The question before the Tribunal is whether this impairment is due in some way to Ms Cavanagh’s compensable medical conditions or recommended treatments for those conditions. There are a number of hypotheses concerning Ms Cavanagh’s cognitive impairment.  Only one of these is supported by the medical evidence before the Tribunal.

19. The hypotheses are as follows. First, Ms Cavanagh’s cognitive impairment may have been caused by a vascular deterioration in the brain due to her smoking habit and/or advancing years. Ms Cavanagh has been a reasonably regular and moderately heavy smoker in the past over a number of years although she has now given up smoking altogether. Professor Cherry, who gave evidence, attributed the memory loss to vascular changes and specifically rejected the hypothesis that the admittedly high doses of opioid pain relief would contribute to memory loss other than on a short-term basis. Dr Briscoe also supports this (that is, vascular change) as the most likely hypothesis. I note Dr Briscoe was not called to give evidence but her report notes as follows (at T167):

    4.Certainly the high dose opiates would have caused cognitive impairment, but I am unaware there is any evidence that high dose opiates caused the changes shown on her CT scan (small vessel ischaemic changes).  The CT scan of her brain performed on 4^th June 2015 showed moderate volume loss, particularly in the anterior and superior frontal regions bilaterally.  There is no extra axial collection, nor intra-cerebral haemorrhages noted.  There is no hydrocephalus or midline shift.  There is patchy white matter hypodensity, particularly in the posterior cerebral hemisphere, suggesting small vessel ischaemic changes, however no specific focal abnormalities.  I cannot say that the high dose opioids cause these brain changes, but the report suggests to me it is more a vascular problem.

    5.The opioid medication would make any cognitive impairment she has (due to the small vessel ischaemic changes) worse.  The reason we stopped the opioids was to improve any cognitive function that she had back to whatever level it is, but stopping the opioids will not have any effect on the CT changes reported.

    6.There is a lot of medical evidence reporting opioids impair cognition (reference attached) and have (sic) cognitive impairment, but as I stated I am unaware that there is any evidence that opioids cause the small vessel ischaemic changes.      

20. The second hypothesis concerning the cognitive impairment is that the high doses of opioids were responsible for it. I do not believe Dr Briscoe’s report confirms this as a possible hypothesis. I take the first sentence in paragraph 4 (quoted above) to be a reference to short-term cognitive impairment while the patient continued to be treated with large doses of opioids. This is borne out by paragraph 5 where there is a reference to stopping the opioid medication “to improve any cognitive function that she had”.

21. On the evidence before me today, there does not appear to be an appropriate underlying medical hypothesis which would allow me to infer that the taking of high doses of opioids under medical supervision causes a long-term cognitive impairment.

22. I must say that I rather suspect that the long-term effects of high opioid use are not yet fully known or appreciated in the medical and scientific communities; but in the absence of an appropriate medical or scientific opinion, I must be astute not to infer that because opioids can cause short-term cognitive impairment during their administration, the taking of high doses of an opioid over a long period can result in cognitive deficits that will persist even after administration of the opioid has ceased. I may not infer causation in the absence of proper medical or other evidence to support it; and I would refer in this connection to the observations of the Federal Court in Langham v The Commonwealth (1984) 5 FCR 284, especially at 292-293.

23. The third hypothesis is that Ms Cavanagh’s multiple respiratory failures, resulting in a decrease of oxygen to her brain on each occasion, have caused the impairment. Here again, I would need medical evidence to support the hypothesis in Ms Cavanagh’s case, and it is lacking.

24. In all the circumstances, I do not find there is sufficient medical evidence before me to support the hypothesis that either the prolonged use of opioid medicines or the respiratory failures have caused or contributed to Ms Cavanagh’s cognitive impairment.  

25. On the evidence before me today, I find that the vascular changes in Ms Cavanagh’s brain are most likely responsible for her cognitive impairment and that these have been most probably caused by her smoking habit and by her increasing age (the latter also having been referred to as a factor by Professor Cherry in his evidence). It follows, in my opinion, that the claim for compensation for cognitive impairment has not been made out, and I should affirm the decision.

    LIABILITY FOR TRAVEL CLAIMS

26. I now turn to the travel claims. Ms Cavanagh seeks compensation for the trips her husband has made to hospital to speak to her doctors. These are occasions where Ms Cavanagh has not been in the car with him. There is no doubt, in my opinion, that the compensation payable in respect of journeys under s 16(6) of the Act is intended to compensate the injured employee in respect of travel to and from medical appointments and treatment centres. It does not compensate family members or others who are travelling separately, even though they are travelling to provide support to the employee. They must meet their own expenses and are not eligible to receive reimbursement.

27. Mr Cavanagh pressed me with a submission that certain consent determinations issued by this Tribunal allowing compensation for family members in like circumstances oblige Comcare to accept that it must pay compensation in respect of Mr Cavanagh’s travel expenses. I do not think that Mr Cavanagh is right in that contention. In a contested hearing the Tribunal must apply the law. It is aided in its interpretation of the law and its application to the facts by precedents in this Tribunal. The precedents which aid the Tribunal are reasoned precedents, and it is the reasoning that is of assistance to the Tribunal.  Equally, it is a statement of reasons in a higher court that binds the Tribunal in its application of the law.

28. The Tribunal is not assisted as such by its own consent determinations, which are by their nature unreasoned and are issued with both parties’ agreement. I fully accept that as a matter of good administrative practice, Comcare should not on one occasion allow claims for independent travel by an employee’s spouse while denying liability on another.  A practice to this effect would reflect poor and inconsistent administration. But whatever Comcare’s internal practices, all Ms Cavanagh can expect from the Tribunal is an appropriate application of the law, and section 16(6) is quite plain in my opinion. The possible misapplication of that law by Comcare in other cases to the benefit of an injured employee’s family members is not relevant to my decision today.

    LIABILITY FOR HOUSEHOLD SERVICES AND ATTENDANT CARE SERVICES

29. I now turn to the third application, which concerns the proper compensation to be paid to Ms Cavanagh in respect of household services and care-attendant services. Comcare has at the present time agreed to pay one hour per week (or two hours per fortnight) in respect of Ms Cavanagh’s household services and has declined to pay any compensation in respect of attendant-care services.

30. It is clear on the evidence before me that Ms Cavanagh is quite incapable of doing very much around the home and has become increasingly dependent on her husband. She is able, on her own evidence, to sweep the verandah and to do some minor kitchen work; but I find that she is unable to contribute, except in a minor way, to other household duties.

31. At T144, there is a schedule of claims that has been prepared by Mr Cavanagh which I shall address.  In addition to the two hours’ cleaning (per fortnight) provided by Country House Services at the present time, I list verbatim the following services cited by Mr Cavanagh:

    ·Monitor medication 1 hour per day;

    ·Collect meals on wheels weekly 1.5 hours;

    ·Collect medication fortnightly 1.5 hours;

    ·Doctor’s appointment monthly 2 hours;

    ·General household duties making bed, washing, cleaning, dusting, vacuuming, washing dishes 12 hours per week;

    ·Assist with showering, washing hair two hours per week;

    ·Providing company and assistance as and where required 20 hours per week;

    ·Mr Cavanagh takes care of all gardening, mowing, dog feeding etc.

32. In all the circumstances, and having regard to the matters to which I am required to have regard under s 29(2) and (4) respectively, I decide as follows. I find the monitoring of medication is something Mr Cavanagh can reasonably be expected to do. In any event, assistance to Ms Cavanagh in this regard has been caused by her cognitive impairment for the most part and that impairment is not, on the evidence before me today, compensable. I think the collection of meals from the “Meals-on-Wheels” service is also something Mr Cavanagh can reasonably be expected to attend to, while I do appreciate the length of the journey. I think the collection of medication and the taking of Ms Cavanagh to and from doctor’s appointments can also be reasonably expected of Mr Cavanagh. Indeed, given Ms Cavanagh’s cognitive impairment, which as I have said is not on the evidence before me today a compensable condition, it is difficult to see how Mr Cavanagh could avoid those trips in any event.

33. The general household duties of making the bed, washing laundry, dusting, vacuuming and shopping are, in my opinion, partly matters that it would be reasonable for Mr Cavanagh to attend to, but I am not persuaded that it is reasonable that he do all of that work. I bear in mind Mr Cavanagh’s own advancing years and the constant demands made of him as a carer one way or another in respect of his wife. I accept there are activities outside the home and some prospects of employment (despite his age) that Mr Cavanagh would wish to devote time to, or at least explore. I accept that there has been continual stress put on Mr Cavanagh by Ms Cavanagh’s persistent illnesses. Even so, I decide that there are some household duties he can reasonably be expected to attend to in addition to his own household chores.

34. I do believe, however, that one hour per week of household assistance is not sufficient. In addition to the one hour per week of household assistance presently provided, I would expect another one hour on each of five days per week to assist Mr and Ms Cavanagh in respect of the tasks that would ordinarily fall to Ms Cavanagh in the context of what appears to me to be a traditional marriage with a traditional division of roles.

1. I find that the gardening, mowing, and dog-feeding would normally fall to Mr Cavanagh to do, and not Ms Cavanagh, and I do not allow the claims for these items. Furthermore, I think providing company and assistance as and when required really belongs to the nature of marriage and is not an allowable claim.

2. So far as showering Ms Cavanagh and washing her hair are concerned, I do not think it is reasonable that Mr Cavanagh should have to attend to these activities. I accept that he is a loving and devoted husband, but it is not reasonable that he be expected to undertake these tasks.

3. In reaching my conclusions, I have taken into account the assessment of Ms Southwood which appears at T121-122, but I have concluded that the one hour per week of household help she recommends is too little in the circumstances of this case and also in light of the conclusion that she herself draws.[1]

   [1] She concludes that Ms Cavanagh “is currently dependent on her husband for most domestic tasks”.

   SUMMARY

4. In summary, so far as household services are concerned, the total number of hours I would allow is six per week, which is an increase of five per week. I note that s 29(1) is predicated on the assumption that the services are to be provided by an external third-party commercial provider. I do not know whether that is in fact feasible given the somewhat remote location of the Cavanagh household (19 km outside Minlaton on the Yorke Peninsula). Nevertheless, the determination I make is that six hours of services per week are required. Again, so far as attendant-care services are concerned, Ms Cavanagh is entitled to two hours assistance per week in respect of her hair-washing and showering. Again, the section is predicated on the assumption that the services are available to be provided by third-party agency. I do not know whether that is the case.

5. I shall make formal orders to reflect my conclusions in each of the three matters.

   I certify that the preceding 39 (thirty-nine)

   paragraphs are a true copy of the reasons

   for the decision of Senior Member N A Manetta

   ……………………[SGD]……………………..

   Administrative Assistant

   Date:   28 February 2018

   Dates of hearing:                  16, 17 March 2017

   Advocate for Applicant:          Mr R Cavanagh

   Advocate for Respondent:     Mr S Cole

   Solicitors for Respondent:     Sparke Helmore