Slater v NSW Department of Education and Training [2001] NSWCC 138

Compensation Court of New South Wales

CITATION : Slater v NSW Department of Education and Training [2001] NSWCC 138 PARTIES : Evelyn Gene Slater NSW Department of Education and Training MATTER NUMBER(S) : 37734 of 2000 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Statutes & Delegated Legislation :- Care of a worker LEGISLATION CITED: section 59(f) Workers Compensation Act 1987 section 61(5) Workers Compensation Act 1987 Hugo v Coles Myer Ltd, unreported, 25 July 1989; CASES CITED: Olsen v Our Lady of Loreto Nursing Home (1999) NSWCCR 557; Perrott v Lower North Coast Area Health Service (1997) NSWCC 41 DATES OF HEARING: 23/11/00, 13/02/01, 22/02/01, 22/03/01 DATE OF JUDGMENT: 03/22/2001

FOR APPLICANT: MR A Hourigan instructed by MacMahon & Associates LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr R A Stanton instructed by Rankin & Nathan

JUDGMENT: 1. The applicant in this matter claims the payment of medical expenses under s60 of the Workers Compensation Act 1987 in respect of care which was provided to her, she alleges, as a result of an injury which she suffered on the 20th of February 1995 arising out of and in the course of her employment with the respondent. She also seeks a declaration as to present and future care. 2. Mr A Hourigan of counsel appeared for the applicant and Mr R A Stanton of counsel for the respondent. Counsels' addresses have been recorded and in the main transcribed. It is therefore unnecessary for me to refer to each submission merely to ensure that it is noted. 3. The applicant is a 47 year old married school teacher who suffered an injury to her neck, when a blind she was seeking to pull down to darken her classroom fell and struck her on the right side of the neck. The respondent has accepted that the applicant continues to suffer from the effects of that injury and over the intervening years has provided her with employment at a variety of schools with a markedly reduced teaching load and other conditions which have allowed her to remain at work earning, presently, her usual salary. When I say remain at work I do not mean that there have not been quite substantial periods for which the applicant has been unable to work as a result of the injury but she is presently working. 4. In addition to payments of weekly compensation, when appropriate, the respondent has paid medical expenses and, in addition, from about 1995, for some hours of home care each week. The hours varied but appear to have been between 2 to 3 hours per week until October 1998. At that time the respondent's insurer advised the applicant in the following terms: Up to now your workers compensation has paid for your use of a private home care provider. Unfortunately, for legal reasons you will have to use a professional home care provider from 8/10/98. You can chose a professional provider who fits your needs... 5. The insurer suggested the use of Home Care Service of NSW and the applicant has since then used that service. 6. In a letter to the insurer of 16 October 1998 Ms Voysey, service co-ordinator of the Hastings Macleay branch of that Service, said: I assessed Mrs E Slater on Wednesday 14/10/98 (omitted) She will be needing 3 1/2 hours of housework per week. The service will include vacuuming, dusting, cleaning of bathroom areas, mopping, ironing, cleaning of windows and mirrored robes. The large window area overlooking the ocean needs frequent cleaning. 7. A document said to be an assessment/profile from the Service's files noted a summary of services to be provided to be 2 to 31/2 hours per week. 8. A facsimile message of 28 October 1998 from the insurer to Ms Voysey read as follows: GIO Australia has approved 3 ½ hrs of housework per week for the above worker. Please bill GIO direct at the above address. 9. On 24 December 1999 the insurer sent a facsimile to the Service in the following terms: I refer to my telephone advise to you of this morning and confirm that recent court decisions in relation to provision of personal care services to an injured worker now limit those services to "personal care of a worker in the workers home directed by a medical practitioner" I understand that services being provided to the above claimant do not fall within that definition and consequently we are unable to accept further liability for these services from the date of this facsimile. The claimant is being advised by letter. 10. Thereafter, until the present, the applicant has had 2 hours per week of home care services provided by the Service, for which she has herself paid, at the rate of $10 per hour. 11. I note that, despite the date of the facsimile, the applicant's claim commences from 10 January 2000 and assume that the insurer met the bills up until 9 January 2000. 12. Despite the assertion in the facsimile of 24 December 1999, the principal issue debated before me was whether an hour a week (or, perhaps, 2 hours a fortnight) was the amount of care for which the respondent should be obliged to pay or whether the figure should be at the upper end of the range of 2 to 3 hours. 13. Rather than authority it is the terms of the Act which sets out the criteria to be satisfied before particular aspects of care are to be paid for by the respondent. 14. S59 provides, inter alia, that "medical or related treatment" includes: (f) care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity; 15. S60 provides, inter alia, that the employer must pay the costs of reasonably necessary medical or related treatment resulting from the injury. 16. Whilst the issue is governed by the terms of the Act some useful observations have been made in a number of cases dealing with similar claims. 17. In Hugo v Coles Myer Ltd McGrath CJ, unreported, 25 July 1989, the Chief Judge drew a distinction between care directed to the assistance of the worker herself and the work of replacing the applicant in the home as a woman who normally provided other members of the family a clean home and meals and dealt with matters such as providing clean linen, clothes and the like. He considered the first category to be one falling within the definition but that the second did not. I respectfully agree with this distinction. 18. In Olsen v Our Lady of Loreto Nursing Home (1999) 17 NSWCCR 557, Burke J observed: In this matter the purpose of the provision of these services is to care for the worker's back and compensate for the consequential limitations on the worker. If the worker usually did the family washing then having it done for her is care of her back. The position is the same in regard to household chores. It is being attended to for her because it avoids unacceptable strain to her back because her back precludes her from doing it herself. In my view, all these types of service are care of the worker in the worker's home irrespective of whether or not someone else has some subsidiary indirect benefit. 19. I consider, with respect, that this view departs from the criteria set out in the Act and I prefer the distinction drawn by McGrath CJ. See also Perrott v Lower North Coast Area Health Service [1997] NSWCC 41. 20. On the other hand I agree with Burke J's view that the mere fact that someone else may have a subsidiary indirect benefit from the care provided does not of itself mean that it is not care satisfying the criteria. The example given by Burke J of a husband also looking through a cleaned window is apt to this case. If it is relevant care for a window to be cleaned it does not cease to be so because the applicant's husband also looks through it. 21. I was referred to other cases, however, it seems to me that this case falls to be decided primarily as a question of fact as to the application of the Act to the items of care carried out. 22. It is convenient to deal with a number of preliminary issues at this point: 23. The applicant had been involved in a motor car accident in the late seventies when her stationary car was struck from behind. Her evidence in chief as to that was: Q. Can you tell His Honour did you suffer any injury as a result of that accident. A. Short term your Honour.It would have probably had something to do with - about 3 months of physio treatment ahead of that but in the 20-odd years since I'm afraid I can't say that anything has been a problem. Q. What part of the body was that physio to. A. It was just whiplash. Q. To the neck. A. Yes, I believe so 24. Dr Wickham, the applicant's general practitioner, noted that when the applicant complained to him of headaches in September 1993 she gave a history of the whiplash injury and that an x-ray carried out on 14 September 1993 showed slight narrowing of the C5/6 disc space with some early osteophyte formation at that level consistent with osteoarthritis. 25. Dr Clery, who examined the applicant for the respondent on 13 October 2000, is of the view, that in the incident of 20 July 1995 the applicant aggravated the pre-existing condition of her neck due to the accident in the 1970's. The doctor attributed one third of the ongoing impairments to each of these incidents and one third to a later one to which I shall come. 26. Dr Wade King, the applicant's principal treating specialist, said in a report of 27 March 1997 to the applicant's solicitors: In view of the previous history of neck symptoms, which seemed to be due to the motor vehicle accident in about 1979 (as mentioned in my previous report), it is not possible for me to say whether the pains that were described as beginning after the accident on 20 February, 1995 were due to an injury occurring de novo in that accident or to an aggravation by the trauma suffered on that date of a pre-existing condition. Whichever was the case, it did seem clear to me that the symptoms for which she consulted me dated from the time of the accident involving the blind on 20 February, 1995. She stated that she had not been troubled by those symptoms prior to that accident but they had troubled her for parts of every day since. I understand that this situation persisted until the symptoms were relieved temporarily by the diagnostic nerve blocks in February and March, 1996. That being the case, it seems that the symptoms for which I have treated Mrs Slater, and the associated disability and incapacity for work were due to the accident on 20 February, 1995 and further that those symptoms necessitated and were responsive to the treatment that I have been supervising. 27. I accept that the care in respect of which the applicant is seeking payment results from the injury of 20 February 1995 and that that is so whether the event was an injury de novo or the aggravation of a pre-existing condition. 28. This is a claim under s60 and no question or apportionment is relevant although Mr Stanton did, somewhat faintly, raise such an issue. 29. On 22 February 1997 the applicant stopped her car for a koala to cross the road and was struck from behind. Dr Wickham in a report of 17 June 1999 said: Her neck problems could well have been exacerbated by the motor vehicle accident on 26 February 1997. However, it is very difficult to quantify the significance with regard to the previous injury. 30. The applicant gave evidence, which I accept, that that accident did not cause any worsening of her condition beyond a short period. In any event she was already receiving home care and I do not consider that that accident increased her need for such care. 31. For the cost of the care to be recoverable it must be directed by a medical practitioner. At the commencement of addresses this remained an issue, however, further evidence was tendered and Mr Stanton, very properly, indicated that he no longer relied upon a contention that the appropriate direction had not been given. 32. Mr Stanton did rely upon s61(5), that subsection provides: The amount for which an employer is liable for the care of a worker as referred to in paragraph (f) of the definition of "medical or related treatment" in section 59 is (subject to any maximum amount under this section) the reasonable cost of providing that care having regard to the extent to which care might be expected to be provided by the worker's spouse or other person residing with the worker 33. The applicant's husband has, the evidence showed, over the years helped with various aspects of household activities. 34. However, at the times with which this matter is concerned he has been very unwell. He had a kidney removed in 1997, is an insulin dependent diabetic whose condition becomes unstable on exertion and has been more recently diagnosed as suffering from terminal cancer. 35. I do not consider it to have been shown that any relevant care might have been expected to be provided to the applicant by Mr Slater. 36. Dr Wickham in his report of 9 March 2000 said: Mrs Evelyn SLATER (D.O.B. 5/12/53) suffers from cervical hypomobility syndrome, which is likely to persist indefinitely, however the symptoms could be controlled for acute exacerbations by RF neurotomies. She had been advised to avoid cleaning procedures at home which may exacerbate this problem, therefore resulting in further time off work. These duties include changing beds, vacuuming, cleaning shower recesses, and tiled floor areas, cleaning mirrors and she advised me there are numerous mirrors in the house to be cleaned as she has mirrored robes and glass shelves, and even on occasions excessive ironing will exacerbate this problem. Up to the 24/12/99 she was having cleaning assistance for 31/2 hours/week, and this minimised the symptoms. Apparently this was ceased by the insurance company on the 24/12/99 and since that time she has been paying herself for a reduced amount of cleaning of 2 hours/week, which is probably not adequate. 37. Dr Wade King summarised the applicant's position in a report of 6 May 2000 as follows: In summary, Mrs Slater suffers recurrent severe neck pain and headaches due to cervical zygapophysial joint impairments that seem to have resulted from neck injuries sustained when a heavy blind roller fell onto her neck on 20 February 1995. The cause of the symptoms has been identified definitively by specific nerve block investigations and other possible causes have been ruled out by extensive medical imaging tests. The condition has stabilised and is considered permanent. There is no curative treatment available for it but the symptoms have been controlled ( and can be again) by percutaneous radiofrequency neurotomy. 38. The doctor pointed out that the applicant's right and left arms were not themselves physically impaired but that their use in arm loading tasks tended to aggravate the symptoms of the neck condition. 39. Dr Bracken, who examined the applicant for her solicitor's on 13 October 2000, said: It is noted that the relevant insurance company has declined to pay for Mrs Slater's home care assistance. It is noted in my report of 13 October 2000 that much use of the right arm aggravates symptoms in her neck and my examination of her on 13 October 2000 would indicate that activities such as lifting, carrying, driving and use of the right arm above chest level as in protracted writing on a blackboard were all activities that aggravated her neck pain. In my opinion it is reasonable to expect that her household duties involving much use of the right arm would also cause similar problems. That having been said it is my experience that patients under similar circumstances usually cope with those problems by limiting activities involving use of the affected arm to shorter periods and that they tend to cope with household duties by doing them piecemeal or a little at a time. It is noted that Mrs Slater is still working full time as a teacher under appropriate restrictions and at the same time maintaining a house. Under those circumstances it is my opinion that if she is to continue working then she should be allowed domestic assistance for four hours per week to attend to general cleaning and particularly heavy cleaning involving kitchen floors and bathrooms and cleaning at higher levels such as windows, mirrors and such like. 40. Dr Hopcroft, who examined the applicant for the respondent's insurer on 13 November 1995, did not accept that the fall of the blind did more than aggravate a pre-existing condition and considered that such aggravation would have ceased within 3 to 6 months. 41. On the other hand, Dr Clery, who examined the applicant for the respondent's solicitors on 13 October 2000, thought that the applicant considerably exaggerated her condition, however, he did accept a continuing aggravation of the applicant's neck condition caused by the 20 February 1995 incident. He said: In addition to this I believe she is fit for most of her household duties. I would support a claim for domestic help at the rate of 1 hour per week. 42. It is interesting to observe that the doctor thought that if further treatment was required it should be radio frequency ablation of the medial nerve root branches, that is, the sort of treatment being given from time to time to control worsening symptoms by Dr Wade King. 43. Estimates as to periods reasonably spent in the provision of domestic work were given by Ms Voysey (3 ½ hours), Dr Bracken (4 hours) and Dr Clery (1 hour). Dr Wickham thought 2 hours probably not adequate. 44. Those estimates were not expressed to be concerned only with care of the worker, as opposed to domestic duties in general. Sensibly, having regard to the issue involved, none of these witnesses were called for cross examination, however, it does leave the Court to make some common sense judgments for itself. 45. Clearly enough, ironing done for Mr Slater, does not satisfy the test. Mr Stanton put that ironing the applicant's clothes did not do so either. I do not agree. No psychiatric evidence was given but this Court is entitled to take account of its own knowledge that keeping incapacitated workers clean, neat, tidy and reasonably well turned out is as much a matter of care,when they cannot do these things for themselves, as the provision of food and medicines. 46. Mr Stanton properly did not argue that the cleaning of the bathroom and toilet were not care but put that the applicant could do some of it, for example, the vanity basins herself. I do not think such a fine dissection to be either practical or necessary. 47. One of the tasks performed was the cleaning of mirrors and windows. The applicant pointed out that mould formed on the long mirrored doors and the elimination of that would seem a matter of care. On the other hand, whilst reasonable cleaning of windows could and should be seen as care, I have an impression that Ms Voysey was thinking in respect of the large window facing the ocean the use of a degree of cleaning that might be demanded as a matter of domestic pride but would go beyond care for the worker. 48. The applicant carries the onus of establishing what is reasonable care for her. Doing the best I can I consider that it is more probable than not that the applicant requires 2 hours domestic care a week. 49. I shall make a declaration accordingly. To some extent the amount of care depends upon what other things the applicant does. The situation might, for example, be different, to some extent at least, if the applicant did not use part of her physical resources for her employment. I shall grant liberty to apply but would hope that this liberty would not be used other than on substantial grounds. 50. In respect of the period between when payments ceased and the present it is clear that some of the 2 hours per week provided at the applicant's own expense has been in respect of domestic work which do not satisfy the requirements of the section. Again, doing the best I can, I consider that the applicant has established that, more probably than not, 1 ½ hours per week has been applied to care of the requisite kind and the applicant is entitled to recover the cost of that care. I shall direct that the parties bring in short minutes quantifying the amount of that recovery. 51. My findings may be summarised as follows: (a) The applicant suffered injury to her neck on 20 February 1995 arising out of and in the course of her employment with the respondent. (b) As a result of the said injury the applicant has received from 10 January 2000 to date 11/2 hours per week being reasonably necessary medical and related treatment within the meaning of s59 and s60 of the Workers Compensation Act 1987. (c)As a result of the said injury it is reasonably necessary that the applicant presently receive two hours per week of such care. 52. I declare that it is reasonably necessary as a result of the injury of 20 February 1995 that the applicant receive two hours per week of care. 53. I order: (a) That the parties bring.in short minutes of order quantifying the amount to be awarded under s60 in conformity with finding (b) (b) That the parties have liberty to apply (c) That the respondent pays the applicant's costs Mr A Hourigan instructed by MacMahon Associates appeared for the applicant Mr R A Stanton instructed by Rankin & Nathan appeared for the respondent