McDonald and Comcare (Compensation)

[2018] AATA 2565

McDonald and Comcare (Compensation) [2018] AATA 2565 (27 July 2018)

Division:GENERAL DIVISION

File Number(s):      2016/3180

Re:John McDonald

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:27 July 2018

Place:Adelaide

The Tribunal affirms the decision under review.

................[Sgd]........................................................

Senior Member N A Manetta

CATCHWORDS

COMPENSATION – domestic gardening services – whether required as a result of compensable injury – held that services were not so required – decision affirmed

LEGISLATION

Safety Compensation and Rehabilitation Act 1988

REASONS FOR DECISION

Senior Member N A Manetta

27 July 2018

1. This is an application by Mr John McDonald seeking a review of a decision taken on behalf of the respondent, Comcare, by one of its delegated review officers dated 3 May 2016.  By this decision, Comcare has refused to pay for certain gardening services asserted by Mr McDonald to be reasonable in the circumstances and to have been caused by his compensable injury. Comcare disputes the need for gardening services is the result of Mr McDonald’s compensable injury. This is the question I must decide afresh on the evidence before me.  At the hearing before me, Mr McDonald represented himself (assisted by his son); Mr Krupka represented the respondent.

   SUMMARY OF CONCLUSION

2. In my opinion, on the evidence before me, Mr McDonald’s need for gardening services is not the result of his compensable injury, and Comcare was right to reject his claim.

   KEY QUESTION BEFORE THE TRIBUNAL

3. To aid Mr McDonald’s understanding of these reasons, I shall express them without quotation from statutory provisions. It is sufficient to note that Mr McDonald must establish a causal nexus between his compensable injury and his inability to attend to his garden. Section 29(1) of the Safety, Rehabilitation and Compensation Act 1988 allows Mr McDonald to seek reimbursement for gardening services but only where they are reasonably required “as a result of” a compensable injury.  It is not in doubt that Mr McDonald does suffer from lower back pain and that this has arisen from a compensable injury.

4. I set out below the background facts and my reasons for the conclusion I have summarised above at [2].

   BACKGROUND FACTS

5. Mr McDonald, who was born in 1939 and who was 78 at the time of the hearing before me, was, in his early years, a police officer in Wales in the United Kingdom. In 1974 he emigrated to Australia and began working with what was then known as the Commonwealth Police.  He was based in Elizabeth, before being transferred to Woomera, in the north of South Australia, towards, he believes, the end of 1974. He spent eight to nine months at Woomera.  His duties there involved the use of Land Rovers on rough, unsealed roads and difficult terrain.  He attributed his subsequent back problems to this period of driving.

6. He gave evidence that one day he collapsed at home with excruciating back pain and was taken, first, to the Woomera base hospital and subsequently to the Flinders Medical Centre in Adelaide. These events, according to Mr McDonald, occurred in late 1975 or early 1976. He had an operation on his lower back for a prolapsed intervertebral disc and had some three months off recuperating.

7. He was reassigned to Adelaide eventually, and joined the Federal Police on what he called the “police duties side” as opposed to the “general duties side”.  He served at the Adelaide Airport for 18 months to two years approximately. He gave evidence that his ongoing back pain during this period of his professional life became so severe that he could not wear a firearm belt, and he said he was eventually dismissed from the force. I assume from Mr McDonald’s evidence that his “dismissal” was, in effect, a retrenchment on medical grounds as he received fortnightly superannuation payments from his fund thereafter.  These events all occurred when Mr McDonald was in his late 30s, that is, in the late 1970s. Mr McDonald has not worked since.

8. I now turn to summarise Mr McDonald’s personal circumstances. Mr McDonald is married, and his wife is now 75 and unwell. He has three adult children, all of whom have left home. He gave evidence, which I accept, that he does most of the domestic work, but a cleaner does come in once a week and his daughter also comes in daily to make the bed. His wife still prepares the daily meals. Mr McDonald can drive a car and will occasionally shop at the local supermarket. He gave evidence, which I accept, that he can negotiate the aisles with a shopping trolley. His daughter will fill shopping lists for him as well. He gave evidence that he uses a walking stick at home.

9. Mr McDonald lived in Hackney after he had left the police force. The property there had a garden which he “pottered in” he said, but his sons did most of the heavy work. In 2002, he left Hackney for Goolwa, where he and his wife now reside. His Goolwa residence has a low-maintenance small garden.

   GOOLWA PROPERTY AND GARDENING SERVICES

10. The rear of the property has a variety of fruit trees (bearing peaches, figs, apricots, and plums) together with a silver birch. On one side of the property there are roses. At the front of the property there is a shrub, small tree, and hedge. Mr McDonald engages the services of a gardener on a once-a-month basis, he said, at $50 per visit, which includes about two hours’ work. I understand the claim to Comcare is for slightly more frequent services; namely, on a once-a-fortnight basis.

11. Mr McDonald gave evidence that the gardener is responsible for raking up leaves, trimming trees, and pruning rosebushes. There does not appear to be a lawn – or in any event a substantial lawn – to mow.  The gardener, whom Mr McDonald said he has not observed, uses, Mr McDonald assumes, an extendable branch-lopper for the trees, which are some 15 to 17 feet high.

12. The gardening work I have just described is the work Mr McDonald maintains Comcare should pay for as a reasonably necessary domestic expense which has arisen as are result of his ongoing lower back pain, which is itself a result of the prolapsed disc he suffered in 1976.

13. Mr McDonald’s back pain has worsened substantially in the last eight years or so according to his evidence. He gave evidence, which I accept, that he was last able to do gardening some eight years ago or thereabouts. He is now only able to do minimal gardening work. He regularly takes painkillers. He said he took Feldene for some 20 years until it began to affect his kidneys and now takes Tarjin twice daily. He gave evidence that his right hip is now “playing up” and he is due for a hip replacement. He feels pain in his lower back and a pressure pain on the base of his spine.

14. As to Mr McDonald’s social activities, I note that he has played golf in the past, but he said he gave it up -  when exactly is not clear but it would appear approximately seven to eight years ago.  He played “night owls” bowls for some five years.

    MR McDONALD’S OTHER CONDITIONS

15. Mr McDonald has other medical problems that are not related to his compensable back condition. I list some of these below. I draw this information from that part of Exhibit R6 which comprised a series of extracts from Mr McDonald’s subpoenaed medical records.  I have no reason to question the accuracy of these records.  In January 2009, Mr McDonald had a total right-knee replacement.  In October of that same year, his left knee gave way while he was toileting himself and he required medical attention.  In January 2010, he twisted his right leg uncomfortably and ended up with a haematoma. In 2016, X-rays revealed “quite severe” osteoarthritis in the right hip and “relatively mild” osteoarthritis in the left hip.  The left knee was found to have “quite severe” osteoarthritis.  In 2011, his osteoarthritis was the subject of an application for a carer allowance.  In 2013, he had a recurrence of left shoulder pain and there is a reference to steroid injections.  In January 2014, his neck pain is recorded as having been “worse since Xmas” and he is recorded as having “had niggles of left cervicla (sic) pain radiating down his left arm”. Without setting them out, there are further references in the exhibit to flare-ups of his neck and shoulder pain, left-knee osteoarthritis, and shoulder problems he has had for years requiring injections into the bursa.

    MR McDONALD’s SUBMISSION

16. Mr McDonald submitted strongly that his lower back pain is responsible for his inability to attend to his garden. I accept that this view is honestly held. I am unable to accept it, however.

17. During the hearing, Mr McDonald had very poor recall of the substantial medical issues from which he has suffered in more recent years. In cross-examination, it became quite clear that he had a poor grasp of his overall medical situation. He had no recollection, for example, of seeing a physiotherapist in respect to his neck and shoulder pain in 2013. The evidence clearly showed attendances at hospital for both left and right knees, and also in respect of his right shoulder.  Of these he had only a sketchy recollection where he had any recollection at all.

18. In particular, Mr McDonald had no recollection at all of one particular visit to the Flinders Medical Centre, which I have found important in the evaluation of his application to the Tribunal. On 1 November 2000, Mr McDonald was admitted to the Flinders Medical Centre with a painful swollen right knee. He was accompanied on that occasion by his sons.  The progress notes[1] taken at the time indicated that Mr McDonald had a “red hot swollen and tender right knee” that he first noticed on Sunday morning.  The knee was steadily worsening with surrounding tenderness.

    [1] Exhibit R4.

19. The note goes on to record that there is no history “of trauma but [he] has been building a fence Wednesday/Thursday, [and] kneeling on concrete on and off”. Unfortunately, Mr McDonald was unable to assist the Tribunal with any recollection of that trip to hospital or of having built a fence at his Hackney home. I accept that Mr McDonald was not being deliberately evasive in his evidence, but I have no reason to doubt that as at November 2000, when Mr McDonald was 61 years of age, his back condition did not prevent him from building a fence. I also note a further record (being an Accident and Emergency progress note from December 2002) that shows that Mr McDonald reported that his lower back pain was not restricting him from normal activities at that time.

20. I am prepared to assume that Mr McDonald may well have been assisted by his sons when he was building the fence; but, even so, as at November 2000, the evidence before me suggests clearly that Mr McDonald was physically well enough to be at least involved in that labour-intensive activity if not solely responsible for all the work. I regard the note from 2002 as further evidence that Mr McDonald’s own view of his situation in that year was that his lower back pain was not a restricting factor in his pursuit of normal activities.  This suggests that Mr McDonald’s subsequent incapacity to attend to gardening is not the result of any ongoing back pain from his admitted back injury dating from 1976 but is the result of supervening ill-health from other non-compensable conditions.

21. I would further note that Mr McDonald’s medical records, which were subpoenaed, do not suggest he has had any significant attendances at hospital or at his GP’s surgery for his back condition. This also supports a finding that Mr McDonald’s incapacity to attend to his garden in the last eight years or so has been the result of other factors and not the result of lower back pain, which might have been expected to result in a need for medical attention had it posed serious restrictions on Mr McDonald.

22. I bear in mind that the principal gardening activities are the lopping of trees (on an occasional basis) and the trimming and pruning of various plants.  Mr McDonald was able to attend to his garden until about 8 years ago notwithstanding back pain at that time.  The main gardening activities depend, self-evidently, on the use of arms and shoulders and free and easy movement.  On balance, I find that Mr McDonald’s supervening shoulder and bilateral hip problems, together with his troublesome left knee, are most probably the cause of his inability to engage in gardening work at his Goolwa home. I do not believe his lower back pain is responsible for that inability.

23. Alternatively, if, indeed, Mr McDonald’s lower back pain is the cause of his inability to perform gardening work, I would infer that the lower back pain is not the result of the injury he suffered in the 1970s.  The back injury sustained in the 1970s did not produce such pain that Mr McDonald was unable to build, or be involved in the building of, a fence at his Hackham home in 2000 and his lower back pain was not inhibiting him in 2002 from participation in normal activities.  If Mr McDonald suffers today from lower back pain that impedes his participation in normal activities, I would infer that the cause is not the injury sustained in the 1970s.  In this connection, I would refer to Mr McDonald’s advancing years and normal degenerative processes.  

24. In this connection, I would note the absence of any persuasive corroborating medical evidence to assist me to find in Mr McDonald’s favour.  Mr McDonald’s claim would have been more persuasive if a specialist medical opinion had been available linking the injury he suffered in the 1970s to his inability to perform gardening work. In this connection, I note the report of Mr McDonald’s GP, Dr Gane.[2]  Dr Gane is quite guarded in his assessment, and there is a reference in his report to the possibility of age-related degenerative processes influencing Mr McDonald’s symptoms and the possible appropriateness of seeking specialist opinion. 

    [2] Exhibit R1, pp 157-158.

25. In all the circumstances, for the reasons I have explained, I am not satisfied that Mr McDonald’s compensable injury is the cause of any part of the incapacity he presently has to perform gardening tasks at his Goolwa home.  

    FORMAL DECISION

26. The Tribunal affirms the decision under review.