Rachel Scuderi and Comcare
[2015] AATA 921
•30 November 2015
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/5659;
General Division ) 2014/4355-4357
Re: Rachel Scuderi
Applicant
And: Comcare
RespondentADDENDUM TO REASONS FOR DECISION
Ms G Ettinger, Senior Member
25 January 2016
The Tribunal published its decision in Re Scuderi v Comcare [2015] AATA 921 on 30 November 2015. Recently attention was drawn to the decision in respect of Applications 2014/4355 and 2014/4356, which originally read as follows:
Applications 2014/4355 & 2014/4356 - The Tribunal affirms the reviewable decision and finds that Mrs Scuderi was capable of undertaking the rehabilitation program dated 25 November 2013, with the modification dated 10 June 2014 which added Teacher’s Assistant to qualify Mrs Scuderi as a School Support Officer. The Tribunal finds that the amended rehabilitation program was appropriate having regard to the factors set out in section 37(3) of the SRC Act.
The reviewable decision in the abovementioned Applications provided for a rehabilitation program for Mrs Scuderi which was signed on 25 November 2013, by her, her treating general practitioner, Dr Pendel, her rehabilitation provider, Ms Samarawickrama, and her manager, Ms Margetts. It included bookkeeper, accounts clerk, payroll clerk, customer service officer, client services officer, insurance officer, business analyst and financial assistant as vocational goals.
The issues in the abovenamed Applications were whether the Applicant was capable of undertaking the rehabilitation program provided for her; and whether the rehabilitation program was appropriate having regard to the factors set out in section 37(3) of the Safety, Rehabilitation and Compensation Act1988 (the SRC Act).
The rehabilitation program did not include ‘Teacher’s Assistant’, which was included on the later amended rehabilitation program dated 10 June 2014. In fact the officer making the reviewable decision gave reasons for not including a position regarding school learning/support officer in the decision of 16 April 2014. At the time of the hearing in this matter, the amended rehabilitation program had not been reviewed, and was not before the Tribunal.
The Tribunal acknowledges that the decision made by this Tribunal on 30 November 2015 in regard to the abovenamed Applications was in error, and that it did not make the correct or preferable decision as required by section 43 of the Administrative Appeals Tribunal Act 1975 with regard to the reviewable decision dated 16 April 2014.
In its Reasons for Decision, the Tribunal discussed Mrs Scuderi’s employment situation at paragraphs [67]–[87]. At paragraph [77] the Tribunal noted that Ms Smales, a physiotherapist, agreed with the other health professionals and medical practitioners who gave evidence at the hearing, that Mrs Scuderi could hold down a clerical or related office job provided lifting restrictions were observed, and she was permitted to move around, and not be seated for long periods.
The Tribunal accepted Ms Ogle’s opinion that without formal tertiary qualifications, and having been out of the financial services area of work for some five years, Mrs Scuderi would find it difficult to find an empathetic employer to give her a job and recognise her restrictions.
The Tribunal also noted that whilst Professor McGill and Mr Wind opined that Mrs Scuderi was fit to work full-time, Dr Bodel was somewhat equivocal in that regard. The Tribunal prefers the opinion of Dr Steel, Mrs Scuderi’s treating neurosurgeon, and notes that Dr Bodel ultimately agreed that part-time hours were more suitable. The Tribunal also took into account Mrs Scuderi’s evidence that she manages 20 hours a week at work, and is tired at the end of it.
In now coming to the correct or preferable decision regarding Applications 2014/4355 and 2014/4356, the Tribunal has taken into account the factors raised in section 37(3) of the Safety Rehabilitation and Compensation Act 1988. The Tribunal varies the reviewable decision dated 16 April 2014 to find that the rehabilitation program signed by Mrs Scuderi and others on 25 November 2013 is suitable and appropriate, with the proviso that lifting restrictions with a ten kilogram limit apply, that she be permitted to work part-time, and that she be permitted to move around and not be required sit for prolonged periods.
Costs may be awarded pursuant to section 67(8) of the SRC Act as agreed or taxed in relation to Application 2014/4357 and Applications 2014/4355 and 2014/4356.
Paragraph [9] above replaces the Decision in regard to Matters 2014/4355 and 2014/4356 and paragraph [90] in the Reasons for Decision published on 30 November 2015. Paragraph [10] above replaces the Decision regarding costs and paragraph [91] in the Reasons for Decision published on 30 November 2015.
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Ms G Ettinger, Senior Member
Scuderi and Comcare (Compensation) [2015] AATA 921 (30 November 2015)
Division
GENERAL DIVISION
File Numbers 2013/5659; 2014/4355-57 Re
Rachel Scuderi
APPLICANT
And
Comcare
RESPONDENT
Decision
Tribunal Ms G Ettinger, Senior Member
Date 30 November 2015 Place Sydney Application 2013/5659 - The Tribunal affirms the decision under review.
Application 2014/4357 - The Tribunal varies the decision under review in which Comcare refused Mrs Scuderi’s claim for household and attendant care services, being toenail cutting, leg waxing and home delivery of groceries pursuant to section 29 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The Tribunal varies the decision in regard to leg waxing only, and finds that an amount $1,080 for one off laser treatment should be approved. The Tribunal affirms the other parts of the decision of Comcare.
Applications 2014/4355 & 2014/4356 - The Tribunal affirms the reviewable decision and finds that Mrs Scuderi was capable of undertaking the rehabilitation program dated 25 November 2013, with the modification dated 10 June 2014 which added Teacher’s Assistant to qualify Mrs Scuderi as a School Support Officer. The Tribunal finds that the amended rehabilitation program was appropriate having regard to the factors set out in section 37(3) of the SRC Act.
Costs can be awarded pursuant to section 68(7) of the SRC Act as agreed or taxed in relation to Application 2014/4357 only.
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Ms G Ettinger, Senior Member
Catchwords
Workers’ compensation – 1990 and 1993 injury – liability accepted – Applicant applies for domestic and attendant care – querying reasonableness of the rehabilitation program – Applicant self-funded retraining as a School Support Officer and is working 20 hours a week - two decisions under review affirmed; one varied to permit one off laser treatment for the Applicant’s legs.
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 29(2), 29(4), 37(3)
Cases
Re Torney and Telstra Corporation Ltd (1994) 20 AAR 94
Fogarty and Comcare [2007] AATA 2002
REASONS FOR DECISION
Ms G Ettinger, Senior Member
30 November 2015
SUMMARY
Mrs Rachel Scuderi who is 43 years old, commenced work with the Commonwealth Bank after leaving school in Year 10. Mrs Scuderi worked first as a teller, then a business analyst at the Bank until she was retrenched on 15 September 2012.
On 1 May 1990 she injured her back while lifting a bag of coins. Liability was accepted pursuant to the Safety Rehabilitation and Compensation Act 1988 (the SRC Act), for right lumbosacral strain at L5/S1. Ms Scuderi aggravated that injury on 1 October 1993 when she lifted a trolley over a small step. Liability was accepted.
Ms Scuderi underwent L5/S1 disc excision, laminotomy and neurolysis carried out by Dr New, an Orthopaedic Surgeon, on 23 February 2011.
On 22 February 2012, Dr Steel, her treating Neurosurgeon and Spinal Surgeon performed L5/S1 anterior lumbar interbody fusion.
Mrs Scuderi was at home on maternity leave during 2002, 2005 and 2007, and recuperating at home for periods after she had surgery in February 2011 and 2012. She said that due to complications following the February 2012 surgery, she was on bedrest for three months. She said that her husband, who worked part-time before she left the Bank, did the cleaning at home during those periods.
Mrs Scuderi’s evidence is that she still has major restrictions as to the activities she can perform. In that regard, she has received the benefit of domestic and attendant assistance as a result of a number of Comcare decisions over the years. That assistance has now been refused, and the Applicant is seeking help with activities with which she says that she encounters difficulties, such as toenail cutting, waxing her legs, and domestic duties such as cleaning, and shopping. Mrs Scuderi gave evidence that her mother who lives on the South Coast comes to her to assist with household duties such as cooking, once a month, but noted that her mother now also has health problems.
A rehabilitation program dated 25 November 2013, signed by the Rehabilitation Provider, Mrs Scuderi’s General Practitioner and Mrs Scuderi herself, was offered to her, providing for clerical and financial industry positions. However she said that she was not able to gain employment as provided for in the program. She also said that she could not, at first, obtain permission or assistance to retrain, so she paid for, and completed a program at TAFE which qualifies her to be a School Support Officer. She states that in that position, she is at liberty to move around during her work at the schools where she is now employed for a total of 20 hours, and finds that she can manage that work even though she gets tired at the end of the day. I noted that the rehabilitation program was amended on 10 June 2014, to include the position of Teacher’s Assistant.
Mrs Scuderi is married and has three children aged 12, 10 and 8.
There are four applications and three reviewable decisions before me. In Application 2013/5659, Ms Scuderi seeks review of the decision of Comcare to refuse her claim for regular household assistance pursuant to section 29 of the SRC Act.
In Application 2014/4357 Ms Scuderi seeks review of the decision of Comcare to refuse her claim for household and attendant care services, being toenail cutting, leg waxing and home delivery of groceries pursuant to section 29 of the SRC Act.
In Applications 2014/4355 & 2014/4356, Ms Scuderi seeks review with regard to the rehabilitation program dated 25 November 2013. The question for the Tribunal is also whether it was appropriate having regard to the factors set out in section 37(3) of the SRC Act.
Ms Scuderi was represented by Ms M Dulhunty of counsel, and the Respondent by Ms R Henderson of counsel.
The reasons for the decisions I have made, follow.
RELEVANT LEGISLATION
The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (the SRC Act), in particular, sections 29 and 37(3). Section 29 of the Act deals with the provision of household and attendant care services. Section 29(1) of the Act provides for Comcare to pay limited amounts of money for household services to injured employees who require such assistance. Sections 29(2) and 29(4) of the Act provide for certain indicia which may be taken into account, along with other relevant matters, in deciding what household services are reasonably required in a particular case.
Section 37 of the Act deals with the provision of rehabilitation programs. Section 37(3) of the Act provides indicia a rehabilitation authority may take into account in deciding upon a rehabilitation program.
WITNESSES
The Applicant gave oral evidence at the hearing. She also provided a Statement dated 12 July 2015 which was Exhibit A1, and a Resumé, Exhibit R5. She provided a list of job applications she had made, which was Exhibit A2, (re-arranged by the Respondent, Exhibit R7), and Mrs Scuderi’s position description as a School Support Officer, (Exhibit A3).
Mr Nigel Wind, an Occupational Therapist and Rehabilitation Consultant whose reports were dated 27 September 2012 and 20 February 2014, (Exhibit R3), gave oral evidence concurrently with Ms Carol Ogle, an Occupational Therapist, at the hearing. Ms Ogle’s report dated 21 August 2015 was Exhibit A8.
Dr James Bodel, an Orthopaedic Surgeon whose report was dated 30 June 2015, (Exhibit A9), and who had examined the Applicant on behalf of her solicitors, gave concurrent evidence with Professor Neil McGill. Professor McGill examined the Applicant on behalf of the Respondent, and reported in 2009. His latest report dated 16 January 2015 was Exhibit R6.
It is convenient to deal with the evidence of Dr Bodel and Professor McGill briefly here. I note that the doctors gave evidence in relation to the household assistance and attendant care applications, as well as the issue of suitable employment.
In reports dated 3 August 2009 and 16 January 2015, Professor McGill stated that the Applicant’s work actions in 1990 and 1993 resulted in a temporary aggravation of symptoms, and not a structural change in her back. He opined as follows: I think as a result of the incidents in 1990 and 1993 she suffered an aggravation of symptoms related to degenerative change at the L5/S1 level, predominantly disc degeneration.
Both Dr Bodel and Professor McGill agreed that Mrs Scuderi had no residual signs of radiculopathy in either leg.
Both Dr Bodel and Professor McGill agreed that Ms Scuderi should observe weight limits e.g. not lifting more than 8 – 10 kgs. This was agreed to also by Mr Wind and Ms Ogle. It was further agreed by all four witnesses that Mrs Scuderi needed to be employed in a position where she could move around at will, and not be seated in one position for long periods.
ISSUES BEFORE THE TRIBUNAL
The Tribunal must decide:
Application 2013/5659
- Whether the Applicant is entitled to receive compensation for household services (regular domestic assistance) pursuant to section 29 of the Act.
I have noted that the Applicant first made a claim for household assistance on 11 July 2012, primarily for assistance with what she termed the more difficult tasks of cleaning, being the bathroom, toilets and showers, and ironing. She said that as a result of her surgery in 2011 and 2012 she was struggling with day to day domestic duties.
On 27 September 2012, Mr Wind reported on behalf of Comcare, and recommended that Mrs Scuderi be provided with a floor steamer and long handled dustpan and broom. He recommended domestic assistance for three hours per week for 12 weeks, which would then be reviewed.
On 27 November 2012 the Respondent accepted liability to pay for household services for two hours per week, and home shopping delivery until 27 February 2013.
On 14 January 2013, Ms Scuderi lodged a further claim for household assistance. On 21 February 2013 the Respondent accepted liability to pay for two hours of domestic assistance per week until 18 May 2013, and the provision of a steam mop and long handled dustpan and broom. Liability was extended to 2 June 2013, and then until 18 June 2013. On 18 June 2013 the Respondent approved the long handled scrubber Mr Wind had recommended.
In providing the household assistance, Comcare was also responding to the recommendations of Dr Janusz Pendel, Ms Scuderi’s long term General Practitioner from whom there was a series of reports in the T-documents. He had recommended that the Applicant be provided with assistance for heavy duty cleaning such as bathrooms, toilets and vacuuming, for a period of six months, to be reviewed after three months.
Mr Wind reported again on 31 May 2013, and considered no household assistance was required because the Applicant could use adaptive equipment, and could pace herself to overcome any difficulties with domestic tasks, as well as enlist the assistance of her husband who had previously undertaken certain of the heavier domestic tasks. He considered that cleaning would maximise Mrs Scuderi’s independence. Mr Wind confirmed that opinion in his oral evidence at the Tribunal, stating that as Mrs Scuderi works 20 hours a week, he did not in May 2013, and does not now, recommend household assistance. If the Applicant were to work full-time, he said, then she would again require assistance for the heavy housework. Ms Ogle agreed.
Mrs Scuderi made an application for review of the Respondent’s decision dated 9 September 2013 to no longer provide regular domestic assistance pursuant to section 29 of the Act. She told me that she can do some household chores, and that her husband continues to assist even though it is increasingly difficult for him to do so because he now works full-time. Ms Scuderi said that she can for example, take the sheets off the bed, but not make the bed up without his assistance. I noted that Mr Scuderi works full-time for financial reasons because the Applicant is working part-time.
In a report dated 20 February 2014, Mr Wind considered the Applicant could clean bathrooms independently with rest breaks, sitting on one of the children’s stools, and the use of assistive equipment with which she had been provided. I noted that the Applicant’s husband assists her with tasks with which she continues to struggle.
Dr Bodel opined that Ms Scuderi could manage day to day household chores with the extra equipment which had been approved, but opined that she could not undertake spring cleaning without assistance. He acknowledged she might not be pain free when doing the work, and acknowledged that showers are hard to clean.
Dr Bodel indicated in his report at page 6 of Exhibit A9, in a passage where he agreed with Professor McGill in regard to Ms Scuderi performing domestic and other tasks, that: … it would be worthwhile encouraging her to try and undertake these activities as means of part of an exercise program. He added that whilst Occupational Therapists’ views may vary from those of doctors, they were more reliant on patient reports and acknowledged that pain varies from person to person, adding that doctors relied on underlying pathology to form their opinions.
Professor McGill added in his oral evidence that physical activity was not bad for the back. Mr Wind also advocated for more physical exercise than the Applicant was undertaking, stating in his report that the provision of domestic support will reduce the physical activity of Mrs Scuderi and slow her physical based recovery. He also opined that: It is recommended that Mrs Scuderi continue to participate in a self-directed exercise and activity regime to maintain and improve her function as much as possible.
I am satisfied from the evidence that the Applicant is working 20 hours a week as a School Support Officer, observing lifting restrictions, and being able to move around at will, which she states that she is managing.
I have noted that the Respondent paid for household assistance as recommended following Mrs Scuderi’s surgery, and that she has been provided with all sorts of approved adaptive equipment.
The reviewable decision of 9 September 2013 held on the basis of Mr Wind’s advice that Mrs Scuderi did not need domestic services at that date.
I prefer the evidence of Dr Bodel, Professor McGill and Mr Wind that Mrs Scuderi can manage housework, including the more difficult tasks such as cleaning bathrooms by pacing herself, sitting on a child’s stool, and with the help of her husband. I note that Ms Ogle was more cautious in her approach towards Mrs Scuderi’s capabilities.
Accordingly I am satisfied from the evidence that Mrs Scuderi is not entitled to receive compensation for household services pursuant to section 29 of the SRC Act as a result of the accepted injury. She does not satisfy the factors set out in section 29(2) of the SRC Act, so her claim for household services cannot be considered reasonable.
I affirm the decision under review in Application 2013/5659.
Application 2014/4357
- Whether the Applicant is entitled to receive compensation for household and attendant care services (toenail cutting, leg waxing and home delivery of groceries) pursuant to section 29 of the Act.
In Application 2014/4357, the decision under review was the reviewable decision dated 12 June 2014 which affirmed a determination dated 6 March 2014. Comcare determined in that decision that the Applicant was not entitled to compensation for household and attendant care services (toe nail cutting, leg waxing and home delivery of groceries) pursuant to section 29 of the Act in relation to the accepted injury.
On 19 August 2014, the Applicant made a claim for review of the Respondent’s decision of 12 June 2014 for household services - grocery shopping delivery, attendant care services (toe nail cutting and leg waxing), and undertaking the rehabilitation program which had been developed for her. I have dealt with each area of claim in the paragraphs which follow.
Toe nail cutting
I noted that the Respondent had, by 22 March 2013, already accepted liability for toe nail cutting and leg waxing. On 27 March 2013 Comcare had advised that leg waxing would be covered once every four weeks until 31 May 2013, and toe nail cutting would be covered once every three weeks until 31 May 2013.
Dr Bodel commented that Mrs Scuderi would find it difficult to cut her toenails, and that if undertaking leg waxing, she probably could not reach down as far as her toes. Mr Wind accepted that a long handled toe nail cutter which would be used once every fortnight would be adequate for Mrs Scuderi. Ms Ogle suggested that long handled scissors with toe spacers provided to enhance safety, could be supplied.
Mrs Scuderi said that she did not proceed with the purchase of the long handled toe nail cutter which had been approved. She said that she was afraid she could not operate it, and would cut herself. She said that she suffers pain when she bends forward, but can do one toe nail at a time. Her evidence was that her husband found it distasteful to assist with that activity. Both Ms Ogle and Mr Wind agreed that it was not appropriate for male members of the family to assist with that task.
Mr Wind considered however, that the Applicant could independently undertake toe nail cutting and leg waxing as she demonstrated the requisite range of motion. He indicated that the cutting of toe nails was required approximately once every two weeks, and could be done with a long handled toe nail cutter, which would provide independence to Ms Scuderi if she did it herself. He said that she could use a chair with a backrest to assist in reaching her toes, acknowledging it would lead to discomfort.
Ms Ogle disagreed, stating that regardless of using a chair with a back support, forward flexion and some twisting was still required, which would not be suitable for Ms Scuderi’s spine following her surgery. She also suggested that standing and putting a foot on a chair while cutting toe nails, would not be suitable either.
Mr Wind, Dr Bodel and Professor McGill agreed some flexion would be needed in either case. Dr Bodel agreed that cutting toe nails would be difficult for the Applicant.
In coming to a conclusion as to whether provision for toe nail cutting should be provided by the Respondent, I am mindful, as noted above, that some flexion would be required to undertake that activity. I accept Mrs Scuderi’s evidence that she would suffer some discomfort in undertaking toe nail cutting. However, I am satisfied from the evidence of both Ms Ogle and Mr Wind that Mrs Scuderi can accommodate her difficulties by sitting when she cuts her toe nails, and using a long handled toe nail cutter (already approved), or long handled scissors and toe spacers which she could use approximately once a fortnight. I accordingly affirm the decision of the Respondent not to further provide assistance for toe nail cutting.
Leg waxing
Mrs Scuderi gave evidence that she was found it very difficult to wax her legs, and that her husband found doing it for her, unpalatable. I noted that both Mr Wind and Ms Ogle agreed that such a task was not a family responsibility. I asked whether Ms Scuderi could do the waxing in stages, that is one leg at a time. Ms Ogle, replied that would be time consuming. Mr Wind recommended that Mrs Scuderi pace herself when waxing. He suggested a way to reduce forward flexion when doing so.
Ms Dulhunty raised the case of Re Torney and Telstra Corporation Ltd (1994) 20 AAR 94 in connection with the issue of leg waxing. She did not elaborate further with regard to the case. I have read Torney, and am satisfied that Torney can be distinguished on the basis that Mr Torney’ degree of permanent impairment was 66%, that is, he was very likely to have been considerably more disabled than Mrs Scuderi. I have noted that the Tribunal in Torney also held that attendant care services as provided by Mr Torney’s wife were reasonably required, and ordered payment to her accordingly. It is a very different situation from that of Mrs Scuderi’s leg waxing.
Dr Bodel commented that Mrs Scuderi would find it difficult to undertake leg waxing, as she probably could not reach down as far as her toes. Ms Ogle stated that to carry out a leg wax, or cut her toe nails, Mrs Scuderi would have to flex forward, (agreed by Dr Bodel and Professor McGill), which would cause her difficulty whether she was sitting or standing. The suggestion that Mrs Scuderi could do one leg at a time was considered to be too time consuming.
Both Mr Wind and Ms Ogle agreed that a suitable alternative to leg waxing was to pay $1,080, which was the approximate one off cost for laser treatment. Mr Wind also suggested the payment for 12 sessions of leg waxing would be an alternative.
I am satisfied from the evidence that Mrs Scuderi finds leg waxing a difficult and time consuming task, and am satisfied with the suggestion of Ms Ogle and Mr Wind that for approximately $1,080 Ms Scuderi could have a one off laser treatment for her legs. I am satisfied the Respondent can provide that money for a one-off service. The reviewable decision is varied in that regard, but otherwise affirmed.
Shopping, home delivery
A decision of 1 October 2013 informed Mrs Scuderi that her assistance with payment for home delivery of shopping would be extended to 15 January 2014.
Ms Scuderi told me that she has problems with driving and shopping. She said that she takes her children shopping, and that they assist with loading and unloading the shopping trolley. She said that Dr Pendel recommended lifting weights no heavier than 5 – 10 kgs. I found there was no disagreement by any of the doctors or occupational therapists in that regard.
Dr Bodel opined that Mrs Scuderi could shop at frequent intervals in order to avoid having heavy loads to carry at any one time. Ms Ogle agreed with Mr Wind that if Ms Scuderi was working full-time, then it would be appropriate to make provisions for her shopping to be delivered. However Ms Ogle supported assistance with shopping for Ms Scuderi even though she is working only 20 hours a week on the basis that shopping once a week rather than piecemeal was the Applicant’s preference. Ms Ogle also took into consideration that Ms Scuderi was already balancing the demands of work, a home and young children.
Mr Wind commented on Mrs Scuderi’s lifting restrictions, (being 5 – 10 kgs), and suggested she did not need to do a ‘big shop’ each time. He added that both Coles and Woolworths on-line would assemble groceries, and assist to pack her car.
Dr McGill opined that people who have had spinal fusion can do all sorts of work including loading a shopping trolley, and wheeling the contents to the car. He acknowledged weight limits not exceeding 10 kgs should apply.
The evidence was that the children help with the shopping. I am satisfied from the evidence that notwithstanding Mrs Scuderi would prefer to do a big ‘once a week shop’, she could spread the shopping over a few days. Dr Bodel thought similarly.
I am satisfied from the evidence noted above that Mrs Scuderi is working 20 hours a week, and is balancing the demands of work and a young family. She says that work makes her tired. I am however satisfied that she can manage her shopping either with the assistance of her children, on-line assistance, payment by her for delivery, or shopping more often for less items at a time. I affirm the reviewable decision in regard to assistance with shopping.
The Tribunal’s conclusions
I am satisfied from the evidence discussed above that Mrs Scuderi can achieve her toe nail cutting satisfactorily, albeit slowly, with the assistance of the approved long handled toe nail cutters, and spacers suggested by Ms Ogle.
I am satisfied from the evidence discussed above that leg waxing is more difficult for Mrs Scuderi to achieve because of the forward flexion involved, and find that the suggestion that a one-off payment of approximately $1,080 for laser treatment should be approved. The decision of the Respondent is accordingly varied in that regard, but otherwise affirmed.
I am satisfied from the evidence discussed above that as Mrs Scuderi works 20 hours a week, and can arrange to shop at intervals and have her children assist, she should be able to manage. I am mindful of her lifting restrictions, and note that if it is her preference to do a ‘big shop’, she may have to adapt and shop at suitable intervals or pay for the delivery herself. The decision of the Respondent in regard to assistance with shopping is affirmed.
Applications 2014/4355 & 2014/4356
- Whether the Applicant was capable of undertaking the rehabilitation program provided for her;
- Whether the rehabilitation program was appropriate having regard to the factors set out in section 37(3) of the Act.
On 19 August 2014 Mrs Scuderi made a claim for review of the Respondent’s decision of 12 June 2014 for household services (grocery shopping delivery), attendant care services (toe nail cutting and leg waxing), and in relation to undertaking the rehabilitation program which had been developed for her.
I have dealt with the claims for household and attendant services in the paragraphs above. In this section of the Reasons for Decision I deal only with the issue of the rehabilitation program to consider whether Mrs Scuderi was capable of undertaking what she had been asked to do, and whether it was appropriate having regard to the factors set out in section 37(3) of the Act.
I have noted that Ms Videsha Samarwickrama, Rehabilitation Provider, in consultation with the Applicant’s treating General Practitioner Dr Pendel, and Rehabilitation Case Manager Ms Louise Margetts, developed a rehabilitation program dated 20 August 2013. Following a review, it was signed by the Applicant, Ms Samarawickrama and Dr Pendel on 25 November 2013. The program was a re-deployment program. The final goal of the program, following job seeking activities, was to have the Applicant return to work with a new employer in a new job in one of the following vocations: bookkeeper, accounts clerk, payroll clerk, customer service officer, client services officer, insurance officer, business analyst or financial assistant. The program initially did not include School Support Officer. Accordingly, the Applicant sought positions in the financial services industry with the assistance of Konnekt to identify positions. She told me that she had been unsuccessful after approximately 400 attempts at securing a position. In that connection I had before me her Resumé and the job log.
Ms Henderson submitted that Mrs Scuderi was not compliant with the rehabilitation program. She submitted I should not accept that Mrs Scuderi had applied for 400 positions at all, or exclusively in the finance industry, indicating at Exhibit R7, that Mrs Scuderi had also applied for positions in education and other industries. I have noted from Exhibit R7 that Mrs Scuderi applied on line for positions in the education field as well as other positions.
Mrs Scuderi told me that her employer would not at first accept her preference to retrain as a School Support Officer, and considered that she was fit to return full-time to the financial services industry. Commencing at PT2/6, Ms Scuderi detailed her approaches to various providers and decision makers, and their replies in regard to her proposed retraining in Certificate III in Education Support at TAFE. She referred to the support of Dr Pendel for retraining in alternative employment.
Because she could not get support for her wish to retrain, Mrs Scuderi enrolled in a course, Certificate III in Education Support at TAFE, which she paid for, and undertook from 9:30 am - 2:30 pm for three days in February 2014, with practical experience for 15 weeks. She obtained employment immediately afterwards, and is now working 20 hours a week at schools, which she told me she is able to do.
I noted that the rehabilitation program was amended on 10 June 2014 to include Teacher’s Assistant.
Ms Ogle commented upon Mrs Scuderi’s limited opportunities to rejoin the financial sector given her medical restrictions and functioning, and commenting that Ms Scuderi had applied unsuccessfully for some 400 jobs in five years. She suggested that in any case, restrictions such as lifting and the ability to move around, would have to be observed, and it would be difficult to find an employer who would give Mrs Scuderi that opportunity. She also noted that Mrs Scuderi was five years out of the financial sector, and did not have formal tertiary qualifications to work in that industry.
Dr Bodel stated he agreed with Professor McGill that Mrs Scuderi was fit to work as a bookkeeper, accounts clerk, payroll clerk, customer service officer, client services officer, insurance officer or financial assistant. He stated that the proviso was that Mrs Scuderi could rotate her tasks, and avoid prolonged sitting or bending. Dr Bodel stated that in his opinion the above applied also to the job of School Support Learning Officer, which I noted had initially been omitted from the Respondent’s list of suitable employment for the Applicant.
I noted that whilst Professor McGill was emphatic Mrs Scuderi was fit to work fulltime, Dr Bodel was somewhat equivocal in that regard. I also noted Ms Dulhunty’s reference to Dr Timothy Steel who is Mrs Scuderi’s treating Neurosurgeon, and who recommended Mrs Scuderi could work 28 hours a week in his report dated 11 May 2015 (Exhibit A5). He suggested however that while Mrs Scuderi underwent further investigations (a cervical spine MRI), 20 hours a week would suffice. Dr Bodel agreed that while matters were being investigated further, Mrs Scuderi could be certified fit to work 20 hours a week.
Professor McGill’s opinion was that given her pathology, Mrs Scuderi could work full-time with the lifting restrictions in place, opining also that physical activity was not bad for one’s back. His view was that people who had undergone fusion could work full-time, commenting that Mrs Scuderi was fit for the business world, or the schools work she was undertaking.
Mr Wind agreed that Mrs Scuderi could work as a business analyst or in payroll provided she was able to move around regularly. Dr Bodel and Professor McGill agreed that lifting restrictions and the ability to move around rather than be seated in one position for long periods was appropriate for Mrs Scuderi, and that with those considerations, she could undertake the jobs discussed in the rehabilitation program.
Ms Carolyn Smales, a Physiotherapist agreed with the other health professionals, including the medical practitioners who gave evidence at the hearing, that Mrs Scuderi could hold down a clerical or related office job provided she was permitted to move around, and not be seated for long periods.
I am mindful that notwithstanding the opinion of Professor McGill and Mr Wind that Mrs Scuderi could work full-time, she would require a sympathetic employer to take into account the restrictions she has, such as the 10 kg lifting limit, and the ability to move around at will. I noted that Dr Steel approved Ms Scuderi working 20 hours, and reserved his position regarding 28 hours of work in view of further testing. Dr Bodel concurred.
In coming to a decision regarding whether Mrs Scuderi was capable of undertaking the rehabilitation program dated 25 November 2013, and whether it was appropriate having regard to the factors set out in section 37(3) of the SRC Act, I have taken into account the Applicant’s evidence, that of the doctors and occupational therapists who gave evidence, and the legislation.
I have noted Ms Dulhunty’s reference to Fogarty and Comcare [2007] AATA 2002, a case where the amendment to a rehabilitation program was considered. That program was held by the Tribunal to not have been properly made. By contrast, I considered the rehabilitation program for Mrs Scuderi to be reasonable once the Schools Assistant component had been added.
Section 37(1) of the SRC Act provides that a rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work should undertake a rehabilitation program.
Section 37(3) of the SRC Act provides for consideration of various factors which a rehabilitation provider shall have regard to. It follows as relevant:
Section 37(3)
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
Section 37(7) of the SRC Act provides that if an employee refuses or fails without reasonable excuse to undertake a rehabilitation program which has been provided, the employee’s rights to compensation under the Act are suspended.
I have taken into account Mrs Scuderi’s evidence that she manages 20 hours a week at work, and is tired at the end of it.
I accept Ms Ogle’s opinion that without formal tertiary qualifications, and having been out of the financial services area of work for some five years, indicates Mrs Scuderi would find it difficult to find an empathetic employer to give her a job, and recognise her restrictions.
I note the evidence of Professor McGill that the Applicant can work full-time provided she can move around at will, and can observe lifting restrictions. However, I am satisfied that the rehabilitation program was amended to include the course Mrs Scuderi did to obtain qualifications as a School Support Officer, and satisfied with her evidence that she is managing 20 hours a week. I am mindful of Dr Steel’s opinion, supported by Dr Bodel, that following further tests Mrs Scuderi may be able to work 28 hours a week.
I affirm the decision of the Respondent that the Applicant was capable of undertaking the rehabilitation program dated 25 November 2013 following the inclusion of the training for the School Support Officer. I find that the rehabilitation program was appropriate having regard to the factors set out in section 37(3) of the SRC Act.
DECISION
Application 2013/5659 - The Tribunal affirms the decision under review.
Application 2014/4357 - The Tribunal varies the decision under review in which Comcare refused Mrs Scuderi’s claim for household and attendant care services, being toenail cutting, leg waxing and home delivery of groceries pursuant to section 29 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The Tribunal varies the decision in regard to leg waxing only, and finds that an amount $1,080 for one off laser treatment should be approved. The Tribunal affirms the other parts of the decision of Comcare.
Applications 2014/4355 & 2014/4356 - The Tribunal affirms the reviewable decision and finds that Mrs Scuderi was capable of undertaking the rehabilitation program dated 25 November 2013, with the modification dated 10 June 2014 which added Teacher’s Assistant to qualify Mrs Scuderi as a School Support Officer. The Tribunal finds that the amended rehabilitation program was appropriate having regard to the factors set out in section 37(3) of the SRC Act.
Costs can be awarded pursuant to section 68(7) of the SRC Act as agreed or taxed in relation to Application 2014/4357 only.
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of
............................[sgd]............................................
Associate
Dated 30 November 2015
Dates of hearing
Date final submissions received
2 and 3 September 2015
24 September 2015
Counsel for the Applicant M Dulhunty Solicitors for the Applicant Carroll & O'Dea Lawyers Counsel for the Respondent R Henderson Solicitors for the Respondent Sparke Helmore
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