Graves and Comcare

[2003] AATA 1184

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1184

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2002/92

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALDITH MARY GRAVES

Applicant

And COMCARE

Respondent

DECISION

Tribunal Michael Sassella, Senior Member

Date24 November 2003

PlaceCanberra

Decision The decision under review is set aside.  In substitution the tribunal decides that the applicant qualifies for compensation in respect of two massage treatments a week and in respect of household services.  The matter is remitted to the respondent for it to determine how many hours of compensable household services are justified each week on the basis of a new home assessment.  The applicant qualifies for payment of her party-party costs by Comcare.

...............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – whiplash neck injury – chronic pain – depressive disorder – compensation for massage treatment – compensation for cost of household services – compensation payable for massage and household services

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) (“household services”, “medical treatment”, “therapeutic treatment”), 16(1), (2), 29(1), (2), 123A, 124(1), (1A)

Compensation (Commonwealth Government Employees) Act 1971

Bashar v Comcare (2002) 69 ALD 784

REASONS FOR DECISION

24 November 2003 Michael Sassella, Senior Member           

RESULT

1.      The Administrative Appeals Tribunal (“the tribunal”) has decided that Comcare should compensate Ms Graves for the cost of massage treatment twice a week and for the provision of household services for a number of hours each week to be determined by Comcare following an up to date home assessment.  This is a decision favourable to Ms Graves and so Comcare is to pay her reasonable party-party costs in accordance with the tribunal’s General Practice Direction[1].

[1] Mary Graves (“the applicant”) was working in Singapore for the Australian Department of Foreign Affairs when she was injured in a motor vehicle accident on 11 June 1985 (T3)[2].  It was determined on 7 November 1985 that Ms Graves would be paid workers’ compensation in respect of the injury, hyperextension injury to the cervical spine (T20).  She received compensation over the years until on 11 July 2001 Comcare (“the respondent”) determined not to pay compensation for the costs of massage treatment after 31 August 2001 and not to pay compensation for the cost of home help after 31 July 2001 (T224).  On 3 January 2002 in the reviewable decision a Comcare delegate reconsidered and affirmed the earlier decision (T240).  This decision is before the tribunal for determination.  Comcare also accepted liability for a major depressive episode in March 1999 (T172).  The evidence[3] now seems that this has broadened out into a chronic pain syndrome, with little or no basis for an ongoing physical injury resulting from the motor vehicle accident.

[2] A list of exhibits is in Schedule 2.

[3] Drs Dowda (T214), Bromley ([10] below), McGill (ex R3) and Lewin (ex R5).

ISSUES

3. As regards compensation for massage treatment the issues, based on s 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[4] are:

(a)Has Ms Graves suffered an injury?

(b)If the answer to (a) is yes, has Ms Graves obtained medical treatment in relation to the injury?

(c)If the answer to (b) is yes, is it reasonable that Ms Graves continues to obtain the treatment?

[4] Relevant legislation is extracted in Schedule 1.

4. As regards the home help, in accordance with s 29 of the Act, the issues are:

(a)Has Ms Graves suffered an injury?

(b)If the answer to (a) is yes, has Ms Graves obtained household services?

(c)If the answer to (b) is yes, what is the extent to which Ms Graves provided her own household services before the injury as compared to the extent to which she now provides them?

(d)If the answer to (b) is yes, what is the number of persons living with Ms Graves as members of her household, their ages and need for household services?

(e)If the answer to (b) is yes, what is the extent, if any, to which the persons mentioned in (d) provided household services before the injury?

(f)If the answer to (b) is yes, what is the extent to which the persons in (d), or any other members of Ms Graves’ family, might reasonably be expected to provide household services for themselves and Ms Graves after the injury bearing in mind the need to avoid substantial disruption to the employment or other activities of the persons in (d)?

(g)If the answer to (b) is yes, does Ms Graves reasonably require those services?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS – MASSAGE

(A)Has Ms Graves suffered an injury?

5. This is not in contention. Comcare’s predecessor, the Commissioner for Employees’ Compensation accepted liability for an injury to Ms Graves in November 1985. On 1 December 1988 the Act came into force. The transitional provisions in the Act have the following effects:

· The Act as of 1 December 1988 governs all compensation entitlements of those covered by it, regardless of when the employee was injured (s 124(1) of the Act).

· The Act provides coverage for an injury that occurred before 1 December 1988 only if the Act then in force, the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”)[5] recognised that an injury had occurred under that earlier Act (ss 123A, 124(1A) of the Act).

The transitional provisions in the Act thus mean that the injury recognised under the 1971 Act received recognition under the Act from 1 December 1988. Liability has never ceased. There is therefore a recognised injury under the Act.

(B)If the answer to (a) is yes, has Ms Graves obtained medical treatment in relation to the injury?

[5] tribunal finds that Ms Graves has received medical treatment in relation to the injury in the form of massage treatment for which she was compensated by Comcare up until 31 August 2001.  Her oral evidence was that she ceased massage when Comcare ceased its coverage.

7.      The Federal Court of Australia in Bashar v Comcare (2002) 69 ALD 784 confirmed that physiotherapy treatment in the form of massage was relevantly medical treatment under the definition of that term in s 4(1) of the Act as therapeutic treatment (also as defined in s 4(1)) obtained under the direction of a legally qualified medical practitioner for palliative purposes. The respondent in argument in this matter accepted that the massage treatment was medical treatment under the Act.

(C)If the answer to (b) is yes, is it reasonable that Ms Graves continues to obtain the treatment?

8.      The tribunal finds that it would be reasonable to restore Ms Graves’ massage therapy.

9.      Ms Graves has been receiving physiotherapy since at least June 1986 (T37).  Her difficulties with compensation coverage for massage began with the report by Dr D K Dowda (an occupational physician) dated 8 March 2001 (T214).  Dr Dowda diagnosed her as suffering from chronic neck pain which he described in psychiatric terms but it had a physical manifestation in limiting her physical capacity to use her shoulder girdle muscles and neck in sustained flexion, extension and rotation.  He did not believe there was any suggestion in the literature that chronic massage treatment is likely to have any impact other than to reinforce in Ms Graves, by the passivity of such treatment, inactivity and dependency on such treatment rather than encouraging self-motivated and self-managed exercise that otherwise could provide some relief for her.  In oral evidence Dr Dowda described the effect as a “vortex of disability”..  His favoured mode of treatment is to encourage activity alongside the experience of pain without resort to medications.  He said it is better to tailor a program to have the body gradually tolerate pain.  This works best with a person with an independent personality who is goal driven.  Dr Dowda was in favour of the hydrotherapy and gym work Ms Graves does, although he said he would like to see what the gym work involves.  These therapies he saw as far superior to massage therapy.

10. Contrary evidence came from Ms Graves’ general practitioner, Dr J J Bromley (T225) who wrote on 16 July 2001 that evidence indicates that massage reduces anxiety scores in the short term in various settings such as intensive care, hospices and occupational health. It is thought to improve self-help techniques. In oral evidence Dr Bromley said that Ms Graves’ problems now are not based on whiplash injury but are based on chronic pain. She said that massage does not encourage dependence in Ms Graves’ case but it helps her to be active. It provides short-term pain relief. Ms Graves organised her activity around her massage sessions, as explained in [23]. Dr Bromley does not see Ms Graves ever escaping from chronic pain. Dr Bromley considers that Ms Graves could be given a multidisciplinary program to help her accept her pain.

11.     Ms Kay Fredericks, a physiotherapist treating Ms Graves, wrote on 27 July 2001 (T226) that massage has been shown to open and lengthen the cellular structure of the muscle fibre thus releasing held waste product which is removed through the lymph system.  The “open cellular structure” also means that “cells are fed better and so more responsive and pliable”..  Range of movement is said to improve and pain levels reduce.  Massage is also said to increase blood oxygen levels which reduces pain levels and improves mobility.  Point work was said to be used to release deep cellular holding in muscle tissue.  It was said that the psychological effects of touch on the endocrine and adrenal systems had long been documented.  She recommended continuation of massage for two sessions a week.

12.     On 5 February 2002 Dr Bromley noted (T241) that Ms Graves was engaging in hydrotherapy three times a week.  Since massage ceased in July 2001 there had been a significant deterioration in Ms Graves’ pain levels and mood.  Massage therapy had reduced Ms Graves’ pain levels in the short term and had improved her general sense of well being.  Recovery time after exacerbations had been faster with massage.  Dr Bromley’s later report (30 July 2002, ex A3) largely echoes these views. 

13.     Occupational physician, Dr W K Harrex (ex A4) wrote on 25 July 2002 that massage offers only short-term relaxation.  He said that continuation of massage therapy could be justified only for the short or long term in conjunction with other programs that enable Ms Graves to improve her self-esteem and become more independent and responsible for her own life.  Failing such programs he did not favour continuing massage therapy.  He saw massage therapy as entrenching Ms Graves’ pain behaviour.  He saw it as providing short-term reduction in symptoms but no other long-term benefit. 

14.     Neurosurgeon Dr J H T Pik (ex A7) said on 23 January 2003 that massage and hydrotherapy improve neck pain, especially after physical activity.  Dr T Gavaghan (a physician) wrote on 4 March 2003 (ex A8) that Ms Graves needs access to a chronic pain clinic but that she also needs other therapies such as massage and hydrotherapy to manage her pain. 

15.     Psychiatrist Dr W E Lucas (ex A9) recorded on 4 March 2003 that massage had assisted Ms Graves in controlling pain, increasing her energy and level of activity and in reducing her need for medication, however he said this is not essentially a psychiatric issue. 

16.     Dr M Dunlop of the Canberra Hospital Rehabilitation Service (ex A10) wrote on 9 April 2003 that, in Ms Graves’ case, issues of massage therapy and home help cannot be determined by objective medical opinion.  He agreed with Dr Dowda that these approaches can reinforce passivity and dependence.  However, in Ms Graves’ case the situation is intractable with minimal chance of behavioural change regardless of what approach is adopted.

17.     Neurosurgeon and spinal surgeon, Dr R L G Newcombe on 4 June 2003 (ex A11) considered massage treatment, while not curative, a treatment Ms Graves found relieved her pain temporarily.  He saw it as a reasonable treatment for pain that may diminish her need for opiates and other medication.  He supported it only if accompanied by active treatment of Ms Graves’ psychiatric condition. 

18.     Dr N W McGill, a rheumatologist (ex R3) considered on 16 September 2002 that Ms Graves suffered from abnormal illness behaviour.  He saw massage and other forms of passive treatment as inappropriate and counter-productive.  He suggested that any technique that increases dependency and discourages self-reliance is more likely to be harmful than beneficial. 

19.     Psychiatrist Dr R D Lewin (ex R5) wrote on 25 September 2002 that there was no psychiatric indication for massage treatment.  He said that provision of home help and other passive interventions is specifically contradictory to normal functioning and encouraging a return to “wellness”..  These measures are likely to encourage dependence and to further entrench a pattern of passive response to pain.  In oral evidence Dr Lewin said that, from the psychiatric point of view, there is no psychiatric condition where massage is a recognised part of a program.  He was unaware of any research supporting such assistance for one with Ms Graves’ problems.  He thought that massage and home help could make Ms Graves feel she is crippled.  Dr Lewin did not change his views when told how Ms Graves organised her time to be more active before and after a massage session.

20.     Physician Dr P D Stevenson (ex R7) wrote on 18 November 2002 that massage therapy was unreasonable and had to be discontinued.  Commenting on Dr Bromley’s views at [12] that massage is required to break down cycles of pain and tension he said that such cycles are not typical of true soft tissue injuries.  They are said by Dr Stevenson to be typical of misdiagnosed psychological problems which present with physical pain and are inappropriately treated with manipulation.  Later in ex R8 (7 May 2003) Dr Stevenson said he saw people with psychological cervical tension or minor soft tissue strains treated with chronic massage and their pain becomes chronic.  He said massage promotes dependency and that any short-term benefit is outweighed by middle and long-term dependence and enhanced chronicity. 

21.     Dr Dowda reported anew on 12 May 2003 (ex R9) and said that passive physical medicine modalities are not recommended on evidence based data as the likely effect of such treatment is persistence of entrenched passivity, dependency and chronic pain behaviours.

22.     In oral evidence Ms Graves said that she has pain in the left side of the neck going into her shoulders.  She has suffered headaches since the 1985 motor vehicle accident.  The area down her back is “tight” with rigid musculature down her spine.  Her medications are Kaponal, an analgesic opioid, Panadeine Forte, another narcotic painkiller, Cipramil, an antidepressant, and Celebrex, a painkiller. 

23.     Ms Graves described a normal day when she had access to massage treatment.  She rose and prepared for the day.  She walked her show dogs.  She had some seven Japanese Spitz dogs in 2000.  She was able to wash clothes, hang clothes to dry, load and unload the dishwasher and do limited sweeping and mopping.  Using a broom was difficult because of the back and forwards activity.  She would sometimes use only her better right arm and hand.  In mopping she found carrying the bucket of water difficult.  She did her shopping at the supermarket on days after having a massage.  She could push a trolley after a massage session.  She had two massage sessions a week in 2000.  She would mow the lawns before her massage, a neighbour starting her motor mower for her.  She washed dogs before massage.  She then had a massage in the afternoon.  When presenting for the massage she was in great pain at the back of her neck and with a headache.  After the massage she felt immediately worse but after 30 minutes could shop, walk around and had more energy and less pain.  She felt lighter and more relaxed.  She would sleep through the night.  This beneficial effect persisted depending on other activities undertaken.  She generally had massages on Tuesday and Thursday.  After a massage she took less Panadeine Forte. 

24.     Ms Graves said that in 2000 her life was somewhat under control.  She could do things to relieve her pain and keep herself engaged.  Now she is taking eight Panadeine Forte a day and Kaponal.  Since 2000 she had sustained a shoulder injury in the rotator cuff after attempting to mop the floor.  She estimated her pain level at 6 or 7 out of a 10 maximum in 2000.  Now it is 10 out of 10.  She now shows her dogs seldom, about four times a year.  She now has nine or 10 dogs and a new litter of pups.  She has two male show dogs and three female breeding dogs.  She now shops often for small amounts each time.  If she tries to use a trolley she may need to abandon it. 

25.     Ms Graves has engaged in hydrotherapy since before 2000.  It is part of a program which also includes gym work.  She has free access to these treatments as a public patient.  She does both activities twice a week on Wednesdays and Fridays.  She finds hydrotherapy less effective than massage.  It does not assist her sleeping but the warm water “makes her bones feel warm”.. 

26.     In cross-examination it emerged that Ms Graves receives some $1,000 a week compensation from Comcare.  It was suggested that she could afford to pay for the massage treatment herself if it is so beneficial.  She mentioned that the costs associated with the dogs are about $6,000 a year.  Ms Graves explained that she has to save to buy a car as she does not qualify for a loan.  The dogs have litters and the puppies can fetch $500 to $700 each when sold.  However Ms Graves finds that this barely covers costs. 

27.     The evidence regarding the reasonableness of massage therapy in Ms Graves’ situation is clearly mixed.  In sheer numbers more experts (Dr Bromley, Ms Fredericks, Dr Pik, Dr Gavaghan, Dr Lucas, Dr Dunlop and Dr Newcombe) support passive therapy of this sort than oppose it (Dr Dowda, Dr McGill, Dr Lewin, Dr Stevenson and, on balance, Dr Harrex).  Of those in support I would exclude Ms Fredericks.  She is not medically qualified and the explanation she provided in [11] for her views, while appearing impressive, was not reproduced by any of the better qualified people.  It is noteworthy too that many of those supporting massage do so only if that is part of a wider set of therapies.

28.     On the other hand, the experts who oppose massage as a therapy tend to speak from a general position rather than take on board the particular evidence regarding the effect on her activity when Ms Graves actually has massage.  I am convinced that in the general run of cases their views are absolutely correct.  However, her treating doctors, Drs Bromley and Dunlop, are well acquainted with Ms Graves’ situation and, albeit for different reasons, favour the reinstitution of massage therapy.  I found Dr Dunlop’s evidence worthy of close consideration.  He is an expert in rehabilitation and has concluded that Ms Graves is for all intents and purposes incurable.  He sees her problems as more behavioural than physical.  He is concerned by her depression and considers that that might lead to self-harm.  He sees it as essential that support not be withdrawn from her – a problem is of course that the massage and home help were withdrawn in 2001.  He suggests a mediated compromise.  The inference here is that, while he agrees in general with Dr Dowda’s views on passive therapies, he does not agree that such a pure approach can be applied in Ms Graves’ case.

29.     For these reasons the evidence that I find most persuasive in this case leads to a view that massage is a palliative therapy that, on past history, assists Ms Graves into a more active, not more passive, lifestyle which is more likely to produce a salutary effect than denial of massage therapy.  Ms Graves is aged only 47.  She received massage therapy for 15 years.  I recognise that this decision may result in her receiving this therapy for a great many more years..  However, the respondent and the Department of Foreign Affairs and Trade may be best advised to consider administratively a mediated compromise with Ms Graves as suggested by Dr Dunlop.  The evidence suggesting that Ms Graves could have afforded to pay for continued massage after coverage for it was cancelled was appropriately presented.  However, the compensation system is based on a notion of compensating individuals for costs associated with disadvantage they have suffered as a result of workplace injuries.  It is not in general a means tested benefit.  Ms Graves was able to explain why she felt she could not spend money from her weekly compensation on massage, even if she may have found a way to pay for massage had she obtained reliable financial advice.  The number of weekly massage sessions attracting compensation is two.  This is based on the evidence regarding the beneficial effects of twice weekly massage in 2001.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS – HOUSEHOLD SERVICES

(A)Has Ms Graves suffered an injury?

30. I find that Ms Graves has suffered an injury as required by s 29(1) of the Act for the reasons above in [5].

(B)If the answer to (a) is yes, has Ms Graves obtained household services?

31.     I find that Ms Graves has obtained household services in the past.  On 10 January 1997 Comcare approved compensation for household assistance at two hours a week for six months (T131).  This was in answer to an application for assistance with:

·     Dusting,

·     Vacuuming,

·     Sweeping,

·     Mopping and scrubbing,

·     Cleaning of bathrooms, windows and oven,

·     Removal of cobwebs,

·     Tidying,

·     Washing and ironing clothes,

·     Weeding, mowing, whipper-snipping, wheelbarrowing, digging, watering.

·     Turning compost,

·     Pruning,

·     Removal of garden rubbish,

·     Planting,

·     Cleaning, vacuuming and polishing of car,

·     “Cleaning dogs”,

·     Unpacking and sorting boxes from return from work in Singapore (T134).

The definition of “household services” in s 4(1) of the Act refers to “services of a domestic nature” with some examples (cooking, cleaning, laundry, gardening). The above list seems to include relevant items.

32.     Ms Graves continued to receive compensation for household services until 31 July 2001 (T224).

(C)If the answer to (b) is yes, what is the extent to which Ms Graves provided her own household services before the injury as compared to the extent to which she now provides them?

33. There is no evidence before the tribunal on Ms Graves’ own provision of household services before her injury, a matter that is relevant because of s 29(2)(a) of the Act. That perhaps is not surprising. As was seen above in [31]-[32] Ms Graves qualified for household services compensation for over four years. A determination in favour of Ms Graves on this point must have been made in 1997.

34.     The evidence from Ms Graves as to her current capacity to provide her household services was that she tries to do cleaning.  She spends several hours a day in the attempt.  She finds she does five or 10 minutes and has to stop because of pain.  She then does some mopping.  She does not cover the entire house over the full week.  She mentioned that last Christmas her two sisters came to stay.  She spent a week preparing the house.  One sister spent 1½ days re-cleaning the house while the second sister stayed elsewhere.  She said that her garden looks like the garden in a “renter’s house”..  The front garden consists of soil only and there are weeds in the courtyard.  She mows a little bit after a neighbour starts the mower for her.  She mows about every six weeks in the grass-growing season. 

35.     The tribunal would expect that this represents a reduced capacity in Ms Graves to carry out the household services she requires.

(D)If the answer to (b) is yes, what is the number of persons living with Ms Graves as members of her household, their ages and need for household services?

36. The tribunal finds that there are no other persons living with Ms Graves in her household, a matter that arises under s 29(2)(b) of the Act. Ms Graves told the tribunal that she has had boarders on and off since 1996 but that it became impossible to continue this. She said she has no one else living with her at present.

(E)If the answer to (b) is yes, what is the extent, if any, to which the persons mentioned in (d) provided household services before the injury?

37. In view of the answer to (d) this question, prompted by s 29(2)(c) of the Act, does not arise.

(F)If the answer to (b) is yes, what is the extent to which the persons in (d), or any other members of Ms Graves’ family, might reasonably be expected to provide household services for themselves and Ms Graves after the injury bearing in mind the need to avoid substantial disruption to the employment or other activities of the persons in (d)?

38. In view of the answers to (d) and (e) this question, prompted by s 29(2)(d) of the Act, does not arise.

(G)If the answer to (b) is yes, does Ms Graves reasonably require those services?

39. This question arises from s 29(1) of the Act. It was Dr Dowda’s report of 8 March 2001 (T214) that brought about the decision to cease Ms Graves’ coverage for household services. Dr Dowda said that home help was likely to lead to further inactivity and even further entrenchment of the pain syndrome.

40.     Dr Dowda’s view was supported by other doctors.  Dr McGill wrote on 16 September 2002 (ex R3) that the provision of home help causes the same difficulty as passive therapy (see [18] above).  In his view she has no overall physical disorder to account for her symptoms and providing home help would not be of overall assistance to her.  Later in ex R4 (28 April 2003) he said that provision of massage and home help would work directly against the aim of returning Ms Graves to as normal function as possible.  Dr Lewin said the same about home help as he said about massage in [19] above. 

41.     Dr Stevenson (ex R7) said on 18 November 2002 that home help is quite inappropriate.  He said that the incident had been seized on to provide access to benefits of the sick role through a more advantageous route than seeking sick role benefits for unrelated and pre-existing psychological difficulty.  He said there is no basis for providing Ms Graves with home help on the irrational postulate that she is still suffering any physical aftermath of a minor neck strain in 1985. 

42.     On the other side of the ledger Dr Bromley supported household assistance after it was ceased (5 February 2002, T241).  Dr Harrex (25 July 2002, ex A4) saw the use of a housekeeper for three hours a week as reasonable provided she participates in programs to improve her self-esteem and rehabilitation. 

43.     Dr Newcombe (4 June 2003, ex A11) said that, taking Ms Graves’ current physical disability into account, even without her psychiatric disability, it is reasonable for her to seek assistance with tasks in housekeeping such as mopping and cleaning baths which she cannot do.  He thought up to three hours a week a reasonable estimate.  He went further and said that in isolation, without other intervention, massage treatment or the provision of household services would not be indicated in that they would tend to engender chronic illness behaviour.  However she was said to be having active pain management in conjunction with active treatment of her psychiatric condition.  He thought it not reasonable to speak of the risk of aggravation of chronic pain behaviour under the circumstances where a person has a major depressive illness with suicidal ideation.  Dr Newcombe thought Ms Graves needs a clean household, at least one companion animal, active treatment of her depressive illness, active pain management by Dr Bromley and any required supporting services. 

44.     On balance I prefer the evidence of Drs Bromley, Harrex and Newcombe on this issue.  Again the other experts have reasoned from the normal and ordinary case to argue that provision of household services would be counter-productive.  While this would be the situation in most similar cases, I am impressed that the experts who favour compensation for household services have attempted, successfully in my view, to place their recommendations in the context of a wider range on interventions involving Ms Graves.  Chronic pain cases are problematic in that they can be difficult to distinguish from cases of malingering.  However, in Ms Graves’ case we have evidence that she is actively engaged in therapeutic exercise and we know that she suffered a rotator cuff tear in 2002 when she attempted to pull a mop out of a bucket of water in 2002 (ex A6, A9).  This indicates that Ms Graves has tried to cope with household duties to the extent of injuring herself on one occasion at least. 

45.     I find that Ms Graves does reasonably require household services on an ongoing basis.  It is possible that this could change over time so Comcare may wish to review the provision of household services periodically, something it would probably do in any event.  It is unclear how much assistance is justified.  The most recent home assessment in the tribunal material was carried out on 5 July 1999 (T187).  The matter will be remitted to Comcare for it to decide on the number of hours of home help justified each week taking into account an up to date home assessment.

DECISION

46.     The decision under review is set aside.  In substitution the tribunal decides that the applicant qualifies for compensation in respect of two massage treatments a week and in respect of household services.  The matter is remitted to the respondent for it to determine how many hours of compensable household services are justified each week on the basis of a new home assessment.  The applicant qualifies for payment of her party-party costs by Comcare.

SCHEDULE 1 – RELEVANT LEGISLATION

The following provisions from the Safety, Rehabilitation and Compensation Act 1988 are relevant:

Interpretation

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

…

household services, in relation to an employee, means services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee's household;

…

medical treatment means:

(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

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

(c) dental treatment by, or under the supervision of, a legally qualified dentist; or

(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or

(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or

(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or

(g) treatment and maintenance as a patient at a hospital; or

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

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

…

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

…

Compensation in respect of medical expenses etc.

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.

(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

…

Compensation for household services and attendant care services

29. (1) Subject to subsection (5), where, as a result of an injury to an employee, the employee 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, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.

(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:

(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;

(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;

(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;

(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;

(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).

…

Injuries suffered before the commencing day

123A. A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.

Application of Act to pre-existing injuries

124. (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

…

SCHEDULE 2 – EXHIBITS

The tribunal had access to the following documentary evidence:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T241) provided by the respondent.

Exhibit A1 – Applicant’s statement of facts and contentions, 23 October 2002.

Exhibit A2 – Report by Dr K Rohan, psychiatrist, 5 July 2000.

Exhibit A3 – Report by Dr J Bromley, general practitioner, 30 July 2002.

Exhibit A4 – Report by Dr W K Harrex, occupational physician, 25 July 2002.

Exhibit A5 – MRI of applicant’s cervical spine, 25 November 2002.

Exhibit A6 – Report by Dr T Gavaghan, psychiatrist, 9 December 2002.

Exhibit A7 – Report by Dr J H T Pik, neurosurgeon, 23 January 2003.

Exhibit A8 – Report by Dr T Gavaghan, 4 March 2003.

Exhibit A9 – Report by Dr W E Lucas, psychiatrist, 5 March 2003.

Exhibit A10 – Report by Dr M Dunlop, 9 April 2003.

Exhibit A11 – Report by Dr R L G Newcombe, neurosurgeon and spinal surgeon, 4 June 2003.

Exhibit R1 – Respondent’s further amended statement of facts and contentions, 8 July 2003.

Exhibit R2 – Report by Dr A White, psychiatrist, 23 April 1997.

Exhibit R3 – Report by Dr NW McGill, rheumatologist, 16 September 2002

Exhibit R4 – Report by Dr McGill, 28 April 2003.

Exhibit R5 - Report by Dr R D Lewin, psychiatrist, 25 September 2002.

Exhibit R6 – Report by Dr Lewin, 14 May 2003.

Exhibit R7 – Report by Dr P D Stevenson, physician, 18 November 2002.

Exhibit R8 – Report by Dr Stevenson, 7 May 2003.

Exhibit R9 – Report by Dr D K Dowda, 12 May 2003.

Exhibit R10 – Report by Dr Stevenson, 17 June 2003.

Exhibit R11 – Report by Dr Stevenson, 3 July 2003.

Exhibit R12 – Report by Dr McGill, 24 June 2003.

Exhibit R13 – Report by Dr Dowda, 29 June 2003.

Exhibit R14 – Report by Dr Lewin, 30 June 2003.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member

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

Date of hearing  21 July 2003
Date of decision  24 November 2003
Counsel for the applicant          Mr C Erskine
Solicitor for the applicant          Pamela Coward Associates, Lawyers
Counsel for the respondent      Mr S Pilkinton
Solicitor for the respondent      Phillips Fox Solicitors