SUSAN CAVANAGH and COMCARE
[2010] AATA 364
•18 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 364
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600259
GENERAL ADMINISTRATIVE DIVISION ) Re SUSAN CAVANAGH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis
Professor P Reilly AO, MemberDate18 May 2010
PlaceAdelaide
Decision The decision under review is affirmed.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – nurse sustained back injury – previous finding by Tribunal that applicant suffering from arachnoiditis arising from myelogram – matter remitted to respondent pursuant to s 42D of Administrative Appeals Tribunal Act 1975 (Cth) for reconsideration in view of Tribunal’s finding – decision by respondent to affirm denial of liability for urinary and bowel incontinence following remittal – decision under review affirmed on resumed hearing.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1) and 14
Comcare v O’Dea (1997) 26 AAR 252
Department of Social Security v Alvaro (1994) 50 FCR 213
EMI (Australia) v Bes (1970) 2 NSWR 238
Re Cavanagh and Comcare (2008) 106 ALD 143
REASONS FOR DECISION
18 May 2010 Deputy President D G Jarvis
Professor P Reilly AO, Member1. The applicant, Susan Cavanagh, made various claims for compensation arising out of an injury to her back when she was working as a nurse in the Canberra Hospital on 11 December 1972. These included claims that she is suffering from arachnoiditis, which has caused incontinence.
2. In a decision dated 30 June 2008, we determined applications to review decisions that had been made by Comcare to reject her claims. We set aside the decision relating to arachnoiditis, and decided that Mrs Cavanagh is suffering from that condition, and that Comcare is liable for that condition.
3. We then also remitted the within proceedings, which relate to the claim for incontinence, for reconsideration by Comcare pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). We made this remittal decision because Comcare had previously decided that it was not liable for Mrs Cavanagh’s arachnoiditis on the grounds that it was not satisfied that she suffers from that condition. In view of our contrary finding, and our conclusion that Comcare is liable for that condition, we decided that Comcare should investigate and reconsider the cause of, and its liability for, the asserted incontinence, and that it was therefore appropriate for us to remit the matter to Comcare for reconsideration.
4. After the remittal Comcare obtained further medical evidence, and then decided to affirm its earlier rejection of Mrs Cavanagh’s claim for incontinence. The hearing then resumed before us in accordance with s 42D(8) of the AAT Act.
Issues before the Tribunal
5. At the outset of the hearing, the parties agreed that the issues before the tribunal were as follows:
(a)whether Mrs Cavanagh is suffering from incontinence of the bladder and bowel; and
(b)if so, whether one or both conditions have been contributed to in a material degree by her employment with the Commonwealth.
6. We have concluded that Mrs Cavanagh is suffering from incontinence of the bladder and bowel. However, the evidence before us in relation to the second issue, that is, the question of causation of incontinence, has given rise to further issues, as to which we have concluded as follows:
(a)episodes of incontinence are initiated by a mechanical cause which is not contributed to by Mrs Cavanagh’s employment-related condition of arachnoiditis; and
(b)we are not satisfied that part of her incontinence is caused by arachnoiditis, or that her incontinence is aggravated by arachnoiditis.
7. Mrs Cavanagh’s original injury occurred when she was lifting a patient in the course of her employment with the Canberra Hospital in 1972. It is not suggested that her incontinence was the direct result of this original injury. Rather, her claim is that in the course of investigating her continuing pain following her injury, a myelogram was undertaken several weeks after her injury, using myodil, an oil-based dye, and that an adverse reaction to this substance caused arachnoiditis, which in turn caused her incontinence.
8. As mentioned in our previous decision, we use the term “arachnoiditis” to refer to scarring of nerve roots within the spinal column, and not to the initial inflammation of membranes resulting from the initial allergic reaction to the myodil dye. As also appears from our previous decision, we found that the condition of arachnoiditis from which Mrs Carpenter is suffering was mild in the sense that it is only affecting certain specific nerves, and that its effects were exacerbated by psychological factors, which over the years have included conditions of depression and a conversion reaction (see (2008) 106 ALD 143, at [28] and [59]).
9. It was common ground that Mrs Cavanagh did not seek medical treatment for her incontinence any earlier than the 1990’s, and so her claim must be determined in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) “SRC Act”): see s 7(4) of the SRC Act, which provides relevantly in effect that an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when the employee first sought medical treatment for the disease or aggravation.
Further evidence on continued hearing following remittal
10. Mrs Cavanagh gave evidence during the resumed hearing which indicates that there has been an increase in the extent of her incontinence. She said that at present, she has incontinence for urine six times a week and incontinence from her bowel four times a week, with dribbling in between. She said that she has to change her pad three or four times a day, usually because it is damp from urine. The pads that she uses for her incontinence were tendered. They are relatively light pads, and do not indicate a significant degree of incontinence.
11. She also said that in the mornings she has a feeling of fullness and then goes to the toilet in order to empty her bowel. She has no feeling of passing faeces, and her practice is to wait for some time, up to half an hour, in order to empty her bowel. She commenced this practice on medical advice. She also said that she has no feeling of passing urine.
12. In our previous decision we expressed the provisional view, at [63], that the evidence then before us suggested that Mrs Cavanagh’s urinary incontinence is not due to arachnoiditis, but to a mobile bladder neck. This was diagnosed by a urologist, Dr Sinclair, to whom Mrs Cavanagh had been referred by Comcare for a medico-legal assessment. We added, at [64], that it would be advantageous for the conditions of urinary and faecal incontinence to be further investigated neurologically, since both Dr Sinclair and Dr Williams (a general surgeon who gave evidence in the earlier hearing before us) acknowledged that they did not have expertise in neurology.
13. We also pointed out that whilst Mrs Cavanagh said that she had undertaken obstetric exercises since she became pregnant prior to 1977 when she was living in Canberra, she had not been referred for physiotherapy to deal specifically with urinary incontinence. We noted that if she were to undertake such treatment and it assisted her, that of itself would be relevant to the diagnosis of her condition. Notwithstanding this, Mrs Cavanagh has not sought physiotherapy treatment for this aspect of her incontinence, although she did say that she had continued to maintain pelvic floor exercises since her last miscarriage.
14. Before Comcare made its decision, following the remittal, to affirm the rejection of the claim for incontinence it referred Mrs Cavanagh to a consultant neurologist, Professor Burns, and also obtained a further report from Professor Stoodley, the neurosurgeon who gave evidence at the earlier hearing. For her part, Mrs Cavanagh then sought a report from another neurologist, namely Associate Professor Thyagarajan, who was then the Head of Neurology at the Flinders Medical Centre. We will refer below to the opinions expressed by these three specialists.
Legislative Scheme
15. Section 14(1) of the SRC Act provides for compensation for employment related injuries sustained by employees, and provides as follows:
“14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
16. Section 4(1) defines “injury” to include “a disease suffered by an employee.” Comcare’s liability for compensation in respect of incontinence depends on whether that condition constitutes a “disease” within the meaning of the SRC Act. That expression was defined in s 4(1), in force at the time relevant to these proceedings, as follows:
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
17. The expressions “ailment” and “aggravation” were in turn defined as follows:
“ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
and
“aggravation includes acceleration or recurrence.”
Consideration
18. The SRC Act does not impose an onus of proof on either party. Our function is to find the relevant facts on the balance of probabilities from the material before us, and to apply the relevant provisions of the SRC Act to the facts found. In doing so, we are exercising the powers conferred by the SRC Act on the decision-maker who made the decision under review: Comcare v O’Dea (1997) 26 AAR 252 at 257, and the cases there cited.
Is the applicant suffering from bowel and/or bladder incontinence?
19. Counsel for Comcare, Mr Cole, acknowledged that according to records before us, Mrs Cavanagh had complained of incontinence to various doctors in the past. However, he submitted that there was no objective evidence before us that she suffers from the condition, and pointed out that she had given varying evidence as to the date of commencement of incontinence. He said that Comcare had no way of ascertaining the truth of the complaint of incontinence, and would leave it to the tribunal to decide whether or not her complaint was true.
20. We have reviewed Mrs Cavanagh’s evidence as to the development of her incontinence and the history of this condition, as recorded by various doctors. In her evidence at the resumed hearing, she gave a careful and straightforward account of her condition, and how she endeavours to deal with it. She has given a history of incontinence to various doctors in the past, and we are satisfied that she has given a truthful account of the nature and extent of her incontinence. We find that she suffers from a moderate degree of urinary and faecal incontinence, and accept her evidence as to the frequency with which this occurs as at the date of the hearing. This makes it unnecessary for us to determine whether, as contended on behalf of Comcare, she made a self-serving appointment to see her current general practitioner, Dr Talbot, for a pap smear, in order to obtain evidence of incontinence because of her anger over what she claimed was an omission from a report from Dr Thyagarajan, or whether, as Mrs Cavanagh claimed, Dr Talbot’s action in offering to verify that she was wearing a pad provides objective evidence of her bowel incontinence.
Has the incontinence been contributed to in a material degree by the applicant’s employment?
21. It is, of course, necessary for us to take into account not only the evidence from Mrs Cavanagh and the three doctors who gave evidence as to neurological issues at the resumed hearing, but also the evidence before us in relation to incontinence that was given at the earlier hearing.
22. It is convenient to repeat our summary and analysis of the evidence before us in relation to this aspect at the earlier proceedings. We then said:
“55. Mrs Cavanagh gave evidence that she first noticed urinary incontinence when she was living on Neptune Island (which was from 1996 to 1999), and that later, when she was still on Neptune Island, she realised that she was also suffering from faecal incontinence. She said the latter condition slowly progressed, but then became more and more frequent. She began to wear pads, and was referred by her GP to Dr Rufus McLeay, who performed a colonoscopy. She attributes her incontinence to her lack of feeling in the perianal area. She has apparently not sought specific treatment for her urinary incontinence.
56. Mrs Cavanagh relies on Professor Cherry’s opinion in support of her claim that her incontinence has been caused by arachnoiditis. In a letter to Mr Cavanagh of 2 December 2005 (exhibit R2, T21, page 54), Professor Cherry said:
‘… You have asked me to make a statement to the effect that the urinary and faecal incontinence that Susan suffers from is directly related to arachnoiditis.
I do not think there is any doubt that urinary and faecal incontinence can be associated with the presence of arachnoiditis. Yes there are other causes of faecal and urinary incontinence. To the best of my knowledge Susan does suffer from arachnoiditis. It is my opinion that the two diagnoses are related but I cannot state categorically that they are.’
In his evidence, Professor Cherry explained that he was not an expert in arachnoiditis or in the diagnosis of incontinence.
57. In his report of 24 January 2006 (exhibit R2, T24, page 59) Dr McLeay focuses on the only available possibilities for treatment, but includes the following comments on page 1 of his report:
‘As I understand from the patient David Cherry is quite convinced that this problem is related to her arachnoiditis. I am not sure if she has had an independent neurological opinion about the incontinence. Because she has some wires left in situ following the removal of epidural implants she cannot have an MRI. … It certainly seems very likely on the basis of today’s superficial review that the problem is related to the arachnoiditis.’
58. Mrs Cavanagh also relies upon an article written by Dr Sarah Smith in March 1999, entitled “The Adhesive Arachnoiditis Syndrome”, which gives an overview of that condition, and on an international patient survey relating to arachnoiditis which was apparently prepared by an organisation called the Circle of Friends With Arachnoiditis (exhibit A8). In the article Dr Smith describes the common symptoms of adhesive arachnoiditis, and Mrs Cavanagh’s symptoms are consistent with those described. The article refers to the symptoms of bladder, bowel and sexual dysfunction. The international patient survey lists the ten most common symptoms, and then lists other “common symptoms seen in the typical case”; the first of those is bladder/bowel/sexual dysfunction, which is reported to have been sixty eight per cent of cases.
59. Comcare arranged for Mrs Cavanagh to be referred to Dr Graham Sinclair, an urologist. He reported that Mrs Cavanagh was suffering from stress urinary incontinence with a drop of the bladder neck on coughing, with a full bladder in the lying position. He found no incontinence with a full bladder on standing, and said that this was good evidence of voluntary control of the bladder function. He attributed the loss of urine in the test where this occurred to a mobile bladder neck, and said that that was the only abnormality he found, and that that was an obvious cause for her incontinence, and a very common problem with women losing urine. He said that apart from childbirth, which did not apply in Mrs Cavanagh’s case, the problem could be due to being overweight and not exercising, loss of hormones, the natural aging process, or having a weak pelvic floor from neurological damage, but he did not think that that was a contributing cause in Mrs Cavanagh’s case. He was ambivalent about whether an area of anaesthesia in the area of the vulva or vagina would cause incontinence, and said that any such anaesthesia would have to impact on the pelvic floor. He further reported that her condition was treatable by pelvic floor exercises, and if they did not work, then by surgery, which had an eighty to ninety per cent success rate.
60. Dr Sinclair also said that urodynamics tests that he conducted were normal, and that made the neurological cause for the incontinence unlikely. However, he acknowledged that he was not a neurologist, and said that it would be better to get someone who was an expert if there was an issue related to the neurological system, as opposed to his finding, which was a mechanical problem. He conceded that bowel incontinence could be consistent with a pelvic floor problem, but on the basis that this was not within his speciality.
61. Comcare arranged for a general surgeon, Dr R S Williams, to investigate Mrs Cavanagh’s faecal incontinence. He provided two reports, and gave evidence. He found on examination an objective loss of sensation unilaterally in the left buttock and perianal area, and that this extended down to the mid thigh and up to the low lumbar region. He reported that digital rectal examination showed normal external anal sphincter tone, and the pelvic floor muscles also appeared normal. He reported that Mrs Cavanagh said that she could not initially feel him performing the rectal examination, but had some sensation inside the rectum. He made the following assessment in his first report, dated 13 April 2007 (exhibit R36):
‘Faecal incontinence can occur after adhesive arachnoiditis, or spinal canal stenosis, where the cauda equina is affected. The cauda equina nerve roots determine bowel and bladder function.’
In this case it seems to be primarily a rectal/perineal sensation problem as sphincters appear clinically OK. So presumably what is happening is that rectal distension is not triggering an indication to the brain via the spinal cord of the need to defaecate.’
He added that there were no obstetric deliveries that could have contributed to the problem by causing pelvic/nerve or muscle damage, and he therefore “(made) the assumption that the incontinence is the result of the original arachnoiditis or subsequent development of spinal canal stenosis, all presumably related to the original work injury.”
62. In his evidence, Dr Williams said that if the anaesthesia within the rectum and anus was more extensive than her external unilateral anaesthesia, then her loss of sensation might support that as the reason for bowel incontinence. However, he also said that Mrs Cavanagh’s history that she could still control flatus indicated a proper functioning of the sphincter, and it was “a little incongruous” that she could feel the sensation of flatus but not faeces (transcript, page 336, lines 20 – 25). He also reported that he was unable to find any objective evidence of faecal incontinence. Dr Williams is a general surgeon, and said that he was not an expert in spinal problems, and that general surgeons predominantly deal with faecal incontinence when that was due to sphincter damage rather than loss of sensation.
63. We prefer Dr Sinclair’s opinion to that of Professor Cherry, because of Dr Sinclair’s expertise as an urologist, and because he examined Mrs Cavanagh with a view to diagnosing the cause of her urinary incontinence. It was not suggested that Professor Cherry separately assessed Mrs Cavanagh’s urinary or faecal incontinence, and his opinion appears to have been based on his general understanding of the consequences of arachnoiditis. The evidence before us accordingly suggests that Mrs Cavanagh’s urinary incontinence is not due to arachnoiditis, but to a mobile bladder neck, as diagnosed by Dr Sinclair.
64. We are of course mindful that Mrs Cavanagh is complaining of faecal incontinence, as well as urinary incontinence, and those matters are very commonly experienced by patients who have arachnoiditis according to the International Patient Survey (exhibit A8). We also note that Dr Toogood found some reduction in sphincter tone, but as we have said, Dr Williams assessed the function of the sphincter as normal. If this was the position and she was able to control her flatus, then those matters and the unilateral nature of the perianal anaesthesia and the absence of any abnormality in the pelvic floor muscles would be inconsistent with arachnoiditis being the cause of faecal incontinence. We consider that it would be advantageous for the two conditions to be further investigated neurologically, since both Dr Sinclair and Dr Williams acknowledged that they did not have expertise in neurology. Further, whilst Mrs Cavanagh said that she has undertaken obstetric exercises since she became pregnant when she was living in Canberra, she has not been referred for physiotherapy treatment to deal specifically with urinary incontinence; if she were to undertake such treatment and it assisted her, that of itself would be relevant to the diagnosis of her condition.
65. We are mindful that when making its reviewable decision in relation to the claim for incontinence, Comcare considered, contrary to our above conclusion, that there was insufficient evidence that Mrs Cavanagh suffers from arachnoiditis, and it based its rejection of the claim for incontinence on that ground. Having regard to our contrary finding in relation to arachnoiditis and to our view that the cause of incontinence should be further investigated, we consider that it is appropriate for us to remit Comcare’s decision in relation to the claim for urinary and faecal incontinence to Comcare for reconsideration pursuant to s 42D(1) of the AAT Act.”
23. As mentioned in paragraph 8 above, arachnoiditis is the scarring of nerve roots within the spinal column. In order to determine whether it has caused the incontinence of which Mrs Cavanagh complains, it is necessary to determine the neurological effects of her arachnoiditis. We have previously found that her condition of arachnoiditis is mild in the sense that it is only affecting certain specific nerves. We think it likely that this condition, exacerbated by psychological factors, has caused the chronic back pain, to which we referred in our previous decision. We note that since the previous hearing, she has been prescribed further medication to assist with her pain management.
24. There is evidence before us that Mrs Cavanagh has suffered sensory loss in the perineal area. This has been variously investigated and described by Professor Stoodley in his report of 15 August 2005 (exhibit R33); Dr Williams, in his report dated 13 April 2007 (exhibit R36); Dr Sinclair, in his report dated 7 August 2007 (exhibit R28); Dr Toogood, in his report dated 12 October 2007 and accompanying diagram (exhibit A2); Professor Burns, in his report dated 14 August 2008 (exhibit RR1); and Professor Thyagarajan, in his reports dated 27 October 2009 and accompanying diagram and 25 November 2009 (exhibits AA2 and AA3). The reports and evidence before us from these doctors indicate that Mrs Cavanagh previously had areas of anaesthesia and/or hypoaesthesia initially on the left side of the perineal area. According to the latest reports, being those of Professor Thyagarajan, this area now extends to the buttocks and upper thigh on both sides.
25. In addition, Mrs Cavanagh gave evidence at the resumed hearing that she does not feel the passing of urine or faeces. We note that she provided the same history to Dr Thyagarajan and to Dr McLeay (see his report of 24 January 2006) (exhibit R2, T9, page 18). Professor Stoodley recorded in his report of 15 August 2005 that she was unable to feel it when she has faecal incontinence but that she was “exquisitely sensitive” to the passing of bowel motions. In his report dated 13 April 2007 (exhibit R36) Dr Williams recorded a history that Mrs Cavanagh was having difficulty feeling when a bowel motion was due to happen and would often find faeces in her pants, but despite that she was able to and still could control flatus. According to the history obtained by Professor Burns in August 2008, she did not feel the passing of urine or faeces “properly”.
26. We find on the basis of the evidence referred to in the preceding paragraph that Mrs Cavanagh now suffers from bilateral anaesthesia or hypoaesthesia in the buttocks and perineal area. We accept the submissions made on behalf of Mrs Cavanagh that the area affected has increased since the previous hearing, and that this sensory loss is due to arachnoiditis. However, the neurological specialists who gave evidence before us at the re-hearing were unable to detect any motor dysfunction arising from nerve dysfunction. In these circumstances, they considered that whilst it was possible that her arachnoiditis and sensory loss were causing her incontinence (being the explanation contended for by Mrs Cavanagh and postulated, for example, by Dr Williams), this was most unlikely.
27. Further, a number of factors referred to in the evidence before us indicate that Mrs Cavanagh’s arachnoiditis and resulting sensory loss are not causing her incontinence. These factors are as follows.
(a)Dr Sinclair found good evidence of voluntary control of bladder function, and also found what he thought was an obvious cause of her urinary incontinence, namely a mobile bladder neck, and he considered that this was not related to any neurological problem. We accept this evidence, which was not contradicted by evidence from any other urologist.
(b)The fact that the urodynamics tests that Dr Sinclair conducted were normal also made it unlikely in his opinion that there was a neurological cause for the urinary incontinence. Professor Thyagarajan confirmed in his evidence that this test indicated that the motor function of the bladder sphincter was intact.
(c)Dr Sinclair also considered that there was laxity of the pelvic floor, which can occur through the aging process or where a patient is overweight, and that the pelvic floor problem could also explain the bowel incontinence, as well as the urinary incontinence.
(d)There were no objective signs on examination of motor dysfunction from any neurological cause. In addition, Dr Williams found normal external anal sphincter tone, and considered that the ability to control flatus indicated a proper functioning of the sphincter.
(e)The faecal incontinence is intermittent, and on the specialist neurological evidence before us that indicates that there is no neurological cause of faecal incontinence.
(f)There is an ability to achieve orgasm, even though only rarely; this raises a question as to the extent of sensory loss (and we note that some doubt was expressed by the expert witnesses at the rehearing as to that issue).
28. Having regard to the neurological evidence before us and the matters referred to in the preceding paragraph, we are not reasonably satisfied that Mrs Cavanagh’s incontinence is caused by her sensory loss or arachnoiditis, and we do not accept the evidence before us suggesting that her incontinence was so caused.
29. It occurred to us that if episodes of incontinence occur, and cause the passing of urine and faeces which Mrs Cavanagh cannot feel because of the sensory loss due to arachnoiditis, then the extent of incontinence would be greater than would have been the case if it were not for her sensory loss. On this hypothesis, part of the incontinence would be caused by mechanical dysfunction, and would be non-compensable, but part would be caused by the compensable condition of arachnoiditis. Alternatively, on this hypothesis, she would have a non-employment related condition of incontinence which is aggravated by an employment related disease, namely arachnoiditis.
30. However, we do not think that the hypothesis referred to in the preceding paragraph is supported by the evidence before us. That is because the applicant has acknowledged that she cannot control her bladder or bowel even when she becomes aware of loss of control. This appears from the following questions and answers during Mrs Cavanagh’s cross-examination at the previous hearing.
“But it’s the – the problem that it just sneaks up on you, without you being aware of it?---Yes.
But once you are aware of it, you can control the function of it. Is that right?---It’s hard to describe that, it’s – I try, and sometimes it just – well, I try, really hard, I really do, but it doesn’t work, and it’s getting more regular. I’m finding that frustrating, very.” (transcript 20.05.08, page 32, lines 16 – 23).
31. We accept the submission of counsel for the respondent, Mr Cole, that if Mrs Cavanagh cannot in a functional way respond to any loss of bladder or bowel control even when she is aware of it, then it cannot be found that her incontinence is greater than it otherwise would be due to her sensory loss. The evidence before us does not therefore support the hypothesis referred to in paragraph 29 above.
Possible further investigation and treatment
32. This matter has a long history, and Mrs Cavanagh is suffering from a most unfortunate condition. Because of this, and because she is not legally represented, we think it appropriate to mention the following further matters.
33. We referred above to Dr Sinclair’s evidence as to the treatment available for weakness in the pelvic floor, and his view that deficiencies in the pelvic floor can cause bowel incontinence. We have taken into account Mrs Cavanagh’s evidence that she has continued to engage in pelvic floor exercises since her last miscarriage. However, we think that in order to complete the investigations into the cause of Mrs Cavanagh’s incontinence, it would be necessary for Mrs Cavanagh to seek treatment from a urologist, and this is likely to involve a referral for physiotherapy, in order for her to receive the full benefit of such treatment. We also note Dr Sinclair’s evidence that if the problem cannot be overcome with physiotherapy, then surgery is available, and this has a very high success rate. It may well be that she will overcome or significantly improve the condition with the assistance of treatment from a urologist.
34. If Mrs Cavanagh obtains such further treatment, including surgery if appropriate, and her symptoms persist, then that would call into question Dr Sinclair’s opinion, and might necessitate further consideration of her claim for compensation for incontinence. Further expert opinion might then be available as to the relevance of arachnoiditis to her incontinence. Alternatively, her case might then fall into the category of cases where, although medical science cannot determine the existence of a causal relationship between a claimant’s condition and his or her employment, a review of all relevant evidence, including lay evidence, might lead a decision-maker to be reasonably satisfied of the existence of a causal relationship, even though the medical evidence does not put the connection any higher than a possibility: see the approach of Herron CJ in EMI (Australia) v Bes (1970) 2 NSWR 238 at 242.
35. If at some future time after completing all relevant further treatment Mrs Carpenter wishes to review her claim for compensation, then it would be appropriate for any subsequent consideration of her entitlement to compensation to be initiated by a fresh claim for compensation for incontinence, and for any such future claim to include a claim for aggravation of incontinence (if it is thought that the hypothesis to which we refer in paragraph 29 above is relevant) and also a claim for permanent impairment. There would then be no question about Comcare’s ability to consider all relevant remaining aspects of her claim, or about the jurisdiction of this tribunal to review any reviewable decision in relation to those issues in the event of a further application for review being made to this Tribunal.
36. We also point out that if a future claim for permanent impairment is made, then under s 24(2)(c) of the SRC Act, for the purpose of assessing whether an injury has resulted in impairment that is permanent, Comcare is required to have regard, amongst other things, to whether the employee has undertaken all reasonable rehabilitative treatment for the impairment. Having regard to Dr Sinclair’s opinion and the neurological evidence before us, we think that it would be necessary for Mrs Cavanagh, in order to meet the requirements of s 24(2)(c), to demonstrate that she has sought appropriate treatment for her incontinence, including in particular treatment from a urologist. We do not think that her continuation of the exercises prescribed for her more than 30 years ago would meet the requirements of s 24(2)(c).
37. The issues to which we have referred in paragraphs 33 – 36 above would have to be considered by the relevant decision-makers in the light of all then available evidence. Our above remarks would not of course be binding on them, but we hope would be of some assistance to them, as well as to both parties, as to the above issues. The issues do not, however, arise in the present proceedings, in view of the conclusions we have reached from all of the evidence before us.
Decision
38. The decision under review is affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President D G Jarvis and Professor P Reilly AO, Member
Signed: …………….. (Signed) …………………….
AssociateDate/s of Hearing 13 and 14 April 2010
Date of receipt of final
submissions 27 April 2010
Date of Decision 18 May 2010
Advocate for the Applicant Mr R Cavanagh
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Australian Government Solicitor
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