Onassys and Comcare (Compensation)
[2015] AATA 677
•8 September 2015
Onassys and Comcare (Compensation) [2015] AATA 677 (8 September 2015)
Division
GENERAL DIVISION
File Number(s)
2014/2669
Re
Cristina Onassys
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr Alexander, Member
Date 8 September 2015 Place Sydney The reviewable decision is set aside and in substitution the Tribunal makes a decision that Comcare pay compensation for the professional pedicure services obtained by Ms Onassys from January 2014 up to and including May 2015 in accordance with the findings of the Tribunal, as outlined in the following reasons.
........................[sgd]................................................
Dr Alexander, Member
CATCHWORDS
WORKERS COMPENSATION - attendant care services - whether services obtained were required as a result of a compensable injury - whether fortnightly professional pedicures were "attendant care services" for the purposes of the Act - whether services obtained were reasonably required - decision under review set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
CASES
Haberfield v Department of Veterans' Affairs as Delegate for Comcare [2002] FCA 1579
REASONS FOR DECISION
Dr Alexander, Member
8 September 2015
BACKGROUND
On 16 August 2012 Comcare accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act (the Act) to compensate Ms Onassys for the conditions of “sprain of shoulder and upper arm (right) and subacromial bursitis (right)”.
In a consent decision pursuant to s 42C(1) of the Administrative Appeals Tribunal Act 1975 dated 13 February 2014 Comcare accepted liability under s 14 of the Act for “an aggravation of the partial tear of Applicant’s rotator cuff (left), sustained in the course of her employment, with a deemed date of injury of 13 July 2012”.
On 27 May 2013 and 12 October 2013 Ms Onassys lodged an Application for Household and Attendant Care Services which sought compensation for lawn mowing, ironing and fortnightly pedicures.
In determinations pursuant to s 29 of the Act, dated 14 June 2013 and 4 November 2013, a Comcare delegate accepted that compensation was payable for household services, gardening services and fortnightly pedicures.
On 10 January 2014 Ms Onassys lodged another Application for Household and Attendant Care Services.
In a determination dated 16 January 2014 Comcare accepted compensation payment for “household services for 1 hour of ironing per fortnight from 21 December 2013 up to and including 16 March 2014” and “gardening services up to 2 hours per month from 21 December 2013 up to and including 16 March 2014”.
In a determination dated 17 January 2014, in response to an assessment provided by an occupational therapist, Comcare accepted that compensation was payable for “1 fortnightly pedicure at a cost of $30” and “ long handled toenail clippers ……for the cost of $69.30”.
In a reviewable decision dated 12 March 2014 a Review Officer affirmed both the determinations.
In these proceedings Ms Onassys only seeks review of the part of the reviewable decision which concerns the entitlement to compensation for “fortnightly pedicures”.
LEGISLATION
Section 29 of the Act concerns, inter alia, compensation for attendant care services, and relevantly provides:
(1)…
(2)…
(3) Where, as a result of an injury to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of :
(a)$200 per week; or
(b) an amount per week equal to the amount per week paid or payable by the employee for those services; whichever is less
(4) Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the nature of the employee’s injury and the degree to which the injury impairs his or her ability to provide for his or her personal care;
(b) the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular person care;
(c) the extent to which it is reasonable to meet any wish by the employee to live outside an institution;
(d) the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
(e) any assessment made in relation to the rehabilitation of the employee;
(f) the extent to which a relative of the employee might reasonably be expected to provide attendant care services.
Section 4(1) of the Act defines the phrase ‘attendant care services’ to mean, in relation to an employee, “services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the employee”.
In Haberfield v Department of Veterans’ Affairs as Delegate for Comcare [2002] FCA 1579 Sackville J addressed the construction of s 29 of the Act and observed as follows :
21 Section 29(3) of the SRC Act imposes a liability upon Comcare to pay compensation of the specified amount if:
* an employee suffers an injury ( both “employee” and “injury” are defined terms);
* as a result of the injury the employee obtains “attendant care services”;
* he or she reasonably requires those services.
22 It follows from the language and structure of s 29(3) that Comcare is liable to compensate an employee who has sustained an injury only if he or she has obtained care services and reasonably requires those services. The fact that an employee has obtained attendant care services is a necessary but not sufficient condition for the award of compensation. The decision maker must also be satisfied that the attendant care services are reasonably required by the employee.
23 The definition of “attendant care services” is central to the operation of s 29(3) of the SRC Act. The definition excludes certain categories of services: that is, household services (a defined expression) medical and surgical services and nursing care. Services are within the definition only if they are “required for the essential and regular personal care of the employee”
24 The expression of “personal care” is not defined, but would seem to be an ordinary English expression. It is a composite phrase which conveys the notion of catering for the basic needs of an individual which must be met if that individual is to function adequately within the limits of his or her physical ability or mental capacity. Without being exhaustive, the phrase embraces such tasks as bathing, grooming, eating , toileting, achieving mobility, taking medication and complying with prescribed exercise or therapy programs ( some of these tasks , of course , may be outside the statutory definition because of the specific exclusions) ……
25 Not all services that are desirable, or even necessary for personal care of an employee are are within the definition. The qualifying words in the definition make it clear that the services must be required for the employee’s essential and regular personal care. This is an important qualification.
26 Section 29(4) of the SRC Act specifies six matters that must be taken into account in “determining the attendant care services that are reasonably required”. The sub-section implies that, in a particular case, some attendant care services may be reasonably required, but others may not be. In other words s 29(4) leaves open the possibility that the decision-maker may determine that none of the attendant care services obtained by an employee is reasonably required, having regard to the six matters identified in 29(4)(a)-(f). This is so notwithstanding that services cannot qualify as “attendant care services” unless they are required for the essential and regular personal care of the employee.
27 In making the determination contemplated by s 29(4) the decision-maker is required to take into account each of the six matters identified in the sub-section. This is not to say that each of the six matters will necessarily be relevant to the circumstances of a particular case …….
ISSUES
Comcare reimbursed Ms Onassys $175.00 for seven professional pedicure services provided between 15 August 2013 and 21 January 2014.
Ms Onassys seeks reimbursement of $250 for 10 professional pedicure services provided in 2014 and $125 and for five services provided up and including May 2015.
Ms Onassys also seeks a decision that Comcare is liable to pay for professional pedicure services every three to four weeks for an ongoing and indeterminate period.
Therefore the relevant issues for the Tribunal are:
·Is a professional pedicure service an “attendant care service” for the purposes of the Act?
·If so, were the professional pedicure services obtained by Ms Onassys in 2014 and 2015 required as a result of her compensable injuries?
·If so, did she reasonably require those services?
·If so, what is a reasonable interval for those services?
·Is there a requirement for Comcare to continue to pay for these services on a regular basis for an indeterminate period?
Ms Onassys’ Evidence
Ms Onassys told the Tribunal that the she is unable to cut her toenails and perform regular foot hygiene because of pain in her shoulders and that she now requires regular professional pedicures every three to four weeks. She explained that she did not make an application for Household and Attendant Care services until May 2013 (almost 12 months after the deemed date of injury) because she was unaware that payment for such services was possible. During that 12 months her daughter, who was living with her at that time, helped her with her foot hygiene.
Ms Onassys acknowledged that she suffered from a lumbosacral spine disorder and that this caused some difficulty with bending forward but maintained that the main difficulty with foot hygiene is the requirement for persistent and repetitive upper limb movement for up to 40 minutes which caused significant shoulder pain.
Ms Onassys told the Tribunal that her daughter no longer lives with her and she now lives alone.
Medical Evidence
An MRI of the left shoulder performed on the 28 November 2012 is reported as showing “Supraspinatus tendinosis with focal thickness anterior tear with oblique articular intrasubstance delamination extension, further small mid supraspinatus tear (3mm) and mild subacromial bursitis”. An MRI of the left shoulder performed on 16 April 2014 is reported as showing no significant change in comparison to the earlier MRI.
An MRI of the right shoulder performed on 30 November 2102 is reported as showing
Marked supraspinatus tendinosis with partial articular tears, with focal full-thickness posterior footprint tear. Infraspinatus tendinosis with early fatty replacement of the infraspinatus and supraspinatus muscle bellies without evidence of atrophy or tendon retraction, small glenohumeral effusion, moderate subacromial bursitis. Moderate AC joint space arthropathy with soft tissue capsular hypertrophy.
An MRI of the right shoulder performed on the 16 April 2014 is reported as showing essentially the same features as the earlier MRI apart from a small increase in the size of the anterior supraspinatus tear.
In a report dated 27 February 2013 Dr Cairns, orthopaedic surgeon, noted that Ms Onassys “is able to attend to the requirements of personal grooming and hygiene without assistance” but “requires assistance with housework from her daughter, and is unable to vacuum or undertake bathroom cleaning” and “ironing aggravates her right wrist arm and shoulder”.
In a report dated 22 March 2013 Dr McBurnie, occupational physician, notes the following:
Ms Onassys has recently moved house to a new home. She noted that this house is easier to maintain than her previous house as it has floor boards that can be mopped easily rather than carpets requiring vacuuming. She noted that she is able to do the housework, but does it at her own pace and avoids loading her right arm or using her right arm for any reaching or repetitive activities. She also has assistance from her daughter who is a university student and living at home. She is able to cook, but stated that she has changed her cooking techniques and is making simpler meals……She noted that she is independent with self- care but finds it awkward to wash her hair.
Dr McBurnie also noted that because of the significant pathology in both shoulders, she would be at a greater than usual risk of episodic pain when performing forceful and/or repetitive upper limb tasks.
Ms Onassys lodged four applications for household and attendant care services dated 27 May 2013, 12 October 2013, 10 January 2014 and 13 March 2014. In each of these applications Dr Sanki, who is general surgeon and Ms Onassys’ treating doctor, endorsed her claim for once fortnightly pedicures. In the first three applications he provides no specific reasons to support this endorsement.
In the application of 13 March 2014 Dr Sanki notes that “due to nature and extent of injury, ongoing assistance is required to prevent further aggravation or exacerbation” with no particular reference to pedicures.
In an Occupational Therapy Activities of Daily Living Assessment Report dated 3 June 2013, Ms Domingo, occupational therapist, noted that Ms Onassys reported that “she is unable to scrub her heels and clip her toe nails as she cannot reach forward or place her legs to her chest to adequately complete the task.” She also noted that Ms Onassys “demonstrated difficulty in reaching forward to allow her to cut her toe nails, therefore relies on her daughter approximately once per fortnight to cut her nails’” and recommended that Ms Onassys “be provided with temporary assistance in receiving a standard/basic pedicure at local nails business to cut her toe nails, once per fortnight”.
Relevantly, a brief physical evaluation was conducted at the time of the assessment with Ms Onassys being asked to demonstrate active range of movement of the spine, upper and lower limbs. Active range of movement of the thoracolumbar spine was reported as being “within normal limits with no reported pain at end ranges”.
In a supplementary report dated 18 October 2013 Ms Domingo notes that Ms Onassys currently has a fortnightly pedicure as approved but recommends only 4 further pedicures in order to encourage independence and less reliance on external assistance. She also recommends the purchase of a long handled toe nail clipper.
In an email dated 22 January 2014 Ms Domingo writes the following:
I understand that you have a determination on current household assistance for Ms Cristina Onassys based on my last report in October 2013. Unfortunately, Ms Onasys currently reports that she is unable to currently perform cutting of her toenails due to ROM limitations in bilateral shoulders and would not be able to effectively use the long handled toe nail cutters as recommended in my previous report. As such, Dr Sanki, in his recent household application form recommends Ms Onassys to receive ongoing pedicures once per fortnight and I concur with this concurrent recommendation. If you could please reconsider this and I recommend, at this time, Ms Onassys continue to be provided fortnightly pedicures as well as the ironing and lawn mowing/gardening assistance.
In a letter dated 13 March 2014 Dr Sanki note that Ms Onassys
is complaining of difficulties in bending over to be able to cut her toenails. Movements of upper limbs forward and bending over to be able to do that produces a lot of pain in both shoulders following her muscular injuries in both shoulder joints. It is recommended that the patient should attend a Podiatrist for such procedures.
In his oral telephone evidence Dr Sanki agreed that there was radiological and clinical evidence that Ms Onassys suffered degenerative changes of the lumbosacral spine and that that this could cause some restriction in the range of movement of the spine. He conceded that he made no formal clinical examination and did not consider the relevance of the spine condition when recommending the regular pedicures. He admitted that he relied on Ms Onassys self-report of symptoms alone and simply applied his understanding of the nature of condition.
In a letter dated 3 December 2014 Dr Van Gelder, Neurosurgeon, notes that Ms Onassys complains of low back pain, pain on walking, and exacerbation of pain with bending or picking up shopping. On examination he noted “restricted range of motion because of lumbosacral tenderness”.
Dr Van Gelder describes the MRI findings as follows:
An MRI scan of her lumbar spine showed decreased disc height at L5-S1 from degenerative change. She has foraminal stenosis on the left possibly impacting the L5, but this does not appear to be symptomatic. There is mild retrolisthesis at L1-2.
In a report dated 31 July 2014 A/Professor Hope, orthopaedic surgeon, summarises as follows:
Occupational overuse on 13 July 2012 induced bilateral shoulder pain. This involved repetitive shoulder movement whilst undertaking 4500 green vegetable inspections over two days. Non-operative treatment has resulted in no recovery. Surgery has been proposed. Today, two years after the injury, there is bilateral shoulder pain, stiffness and weakness with a significant functional loss. Examination showed mild shoulder muscle wasting with tenderness and stiffness as well as impingement sign. The MRI showed bilateral rotator cuff (suprapinatus) tears. These require surgical repair and the shoulders require decompression.
In response to questions provided by Comcare, Professor Hope states that “Ms Onassys is unable to cut her toenails and scrub her feet because of the lumbar spine condition. This is unrelated to the shoulder condition. If the feet cannot be accessed, then attendance with a pedicurist is reasonable once per month” and adds that “provision of regular pedicure would not have a detrimental impact on her long-term ability to care for her own feet and toes.”
I note that Professor Hope expressed his opinion in respect of the lumbar spine without reference to any radiological studies or physical examination.
In a supplementary letter dated 6 August 2015 Professor Hope notes that MRI of the lumbosacral spine of 5 September 2014 indicates “severe degenerative change” which supports the conclusion that “the inability to bend forward to reach the toes is due to the lumbar spine condition.”
The brief letters dated 29 April 2014, 27 May 2014 and 23 September 2014 provided by Dr Kahil, orthopaedic surgeon, in my view, do not provide any assistance to the issues before the Tribunal.
CONSIDERATION
The evidence before the Tribunal clearly demonstrates that Ms Onassys has significant rotator cuff pathology in her right and left shoulders and suffers considerable functional impairment and pain. Her treatment has included physiotherapy, hydrotherapy, chiropractic therapy and sub-acromial corticosteroid injections with only temporary relief of symptoms. Surgical treatment has been recommended but Ms Onassys is reluctant to pursue this treatment because of concerns about potential poor outcomes.
Ms Onassys self-report of symptoms and her description of the difficulties with foot hygiene is quite persuasive and tends to be supported by the occupational therapy assessment performed by Ms Domingo.
The medical evidence I find to be relatively unhelpful as is does not, in my view, satisfactorily address the particular issues before the Tribunal.
Dr Sanki’s evidence I found somewhat unconvincing as it appeared to be significantly influenced by Ms Onassys’ self-report of symptoms with no support by physical examination or formal assessment of functional impact but he did apply his claimed knowledge of the condition.
The opinion expressed by Professor Hope, on which the Respondent relies, I found to be somewhat problematic. Notwithstanding his conclusion of “significant functional loss” he does not address the potential impact of this loss on Ms Onassys’ ability to undertake an activity which, in my view, involves the use of the upper limbs. Also his assertion that “Ms Onassys is unable to cut her toenails and scrub her feet because of the lumbar spine condition” is not supported by physical examination or a formal assessment of functional impairment and appears to be an assumption influenced by the MRI findings.
Notwithstanding the difficulties with the evidence I am satisfied that there is sufficient evidence to make the following findings:
·A professional pedicure is a form of grooming and is an “attendant care service” for the purposes of the Act.
·The pedicure services obtained by Ms Onassys in 2014 and up to and including May 2015 were required as a result of the impairment suffered by the compensable injury to her right and left shoulders and that she did reasonably require those services.
·A reasonable interval for the pedicure services is once per month with no more than 12 services per year.
On the issue of ongoing services I make no finding as my reading of s 29 of the Act does not provide the Tribunal with the power to direct payment for attendant care service for a regular and indeterminate period.
If Ms Onassys obtains further attendant care services she will need to make a new claim which will be assessed in accordance with the relevant legislation. If Ms Onassys makes such a claim it would be wise for her to ensure that any supporting medical evidence clearly addresses the relevant issues with particular reference to physical examination and functional impairment.
DECISION
The reviewable decision is set aside and in substitution a decision that Comcare pay compensation for the professional pedicure services obtained by Ms Onassys from January 2014 up to and including May 2015 in accordance with the findings of the Tribunal.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr Alexander, Member .............................[sgd]...........................................
Associate
Dated 8 September 2015
Date(s) of hearing 10 August 2015 Applicant In person Counsel for the Respondent D Tucker Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
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Employment Law
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Administrative Law
Legal Concepts
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Statutory Construction
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Remedies
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Appeal
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