1. The following issues arise in the four proceedings before us.

(a) Claim for permanent impairment arising from accepted conditions of intervertebral disc protrusion, epileptic seizures and depressive illness

Does Mrs Cavanagh suffer any permanent impairment as a result of her accepted conditions, and

• if so, the degree of any such impairment;
• the degree of permanent impairment, if any, as at 1 December 1988;
• whether there has been any deterioration in any impairment such that the impairment can be characterised as a further or new impairment; and
• in respect of any further or new impairment since 1 December 1988, the degree of that impairment.

(b) Claim for household services and attendant care services

Is Mrs Cavanagh entitled to household services and attendant care services, and if so

• what specific household services and attendant care services is she entitled to, and what is the appropriate assessment of the extent of such services; and
• to what extent Mrs Cavanagh's husband might reasonably be expected to provide household and attendant care services.

Whether Mrs Cavanagh suffers, or has at any time in the past suffered, from arachnoiditis, and if so, the date when she is to be taken to have sustained the injury constituted by that condition.

Does Mrs Cavanagh suffer from urinary or faecal incontinence, and if so, is Comcare liable for that condition.

1. Questions of jurisdiction also arise. In the material tendered in the proceedings and in evidence presented in relation to the applicant's condition of arachnoiditis, other diagnoses (apart from arachnoiditis) were advanced as possible explanations for her symptoms. Those other diagnoses were degenerative spinal spondylosis, spinal canal stenosis and a conversion disorder. Mrs Cavanagh has not lodged a claim for any of those conditions, and no primary or reviewable decision has been made by Comcare in relation to them. We will refer below to whether we have jurisdiction to determine whether Mrs Cavanagh is suffering from those conditions.

1. Our following findings are based on the evidence of Mrs Cavanagh, including her witness statement (exhibit A1), and also on facts recorded in the extensive medical records tendered by the parties.
2. Mrs Cavanagh's injury occurred when she was working as a nurse at the Canberra Hospital and she lifted a patient who was in bed (see her original report of injury, exhibit R1, T5, page 47). She continued to experience pain, and a myelogram was undertaken on 25 January 1973, using myodil, an oil based dye.
3. No abnormality was detected. However, she had an immediate severe reaction to the myelogram and was diagnosed as suffering from meningitis. She remained in hospital until 23 February 1973. During the period after the myelogram, a number of lumbar punctures were carried out which Mrs Cavanagh understood were to remove myodil that still remained in her spine (exhibit A1, page 1). She continued to experience pain, and on 1 May 1973 an operation was conducted to explore the lumbar spine. No nerve root compression was observed. The operation record refers to arachnoiditis, and we will refer to this record in further detail below.
4. Mrs Cavanagh returned to work after the operation on lighter duties as a day nurse, but some months later, when she was pulling a patient on a trolley into a lift with another nurse, she was pushed hard against the back railing of the lift. This exacerbated her back injury and she was once again unable to work. After that her back pain continued, and she underwent a variety of treatment, which included periods in hospital in traction, on one occasion for up to five weeks, wearing a plaster cast from under her arms to her hips for about three to four months, and strong pain medication.
5. She continued to suffer pain, and ceased working as a nurse at the Canberra Hospital in 1974. She then started to work at home doing crocheting and tapestry. In 1976 she was medically assessed as being permanently unfit for work as a nursing aid or for any similar work which involved lifting or bending, but to be fit for lighter work such as household work. She said that she had two miscarriages while she was living in Canberra, but a report of Dr Burvill dated 6 July 193 (exhibit R31, tab 6) records that she had four miscarriages, with the longest term being twenty-six weeks. In 1977 she left Canberra and moved to Adelaide, and in June 1980 she was referred to the Memorial Hospital Pain Clinic. Two spinal blocks were administered by an anaesthetist, Dr D G Fenwick in July 1980, but these provided no lasting relief. Dr Fenwick administered further sub-arachnoid spinal blocks in October 1983.
6. During the period from 1973 to 1980, Mrs Cavanagh said that she became very frustrated and sometimes angry, because she was not given any diagnosis for her ongoing pain. Early in 1982 a delegate of the Commissioner for Employees Compensation decided that he was unable to find that she was totally incapacitated for work as a result of her injury. During 1982 Mrs Cavanagh independently undertook rehabilitation at St. Margaret's Rehabilitation Centre. She did a course covering shorthand, typing, bookkeeping and computer skills, and also undertook hydrotherapy. Mrs Cavanagh developed depressive symptoms and was referred to a psychiatrist, Dr Lim, in September 1982, and later to another psychiatrist, Dr Burvill. In 1983 she developed epilepsy as a result of the withdrawal of the medication which she had been taking for her pain.
7. In February 1984 Dr Fenwick referred Mrs Cavanagh to the Pain Management Unit at the Flinders Medical Centre (FMC). She was then referred to Professor Cherry, who arranged for a variety of tests, and for her to be referred to other appropriate specialist clinicians. She was also admitted to hospital in order to withdraw from an addiction to benzodiazepine.
8. In March 1985 Professor Cherry also arranged for an epidural stimulator to be implanted. This provided Mrs Cavanagh with significant relief from her pain, notwithstanding that there were a number of problems, particularly early on, because of the need to change batteries or to reposition leads. Mrs Cavanagh gave evidence that she still required pain medication, but said that overall her level of pain changed with the stimulator from eight to nine on a scale of one to ten, to between five and six. We also note that according to a report of Dr Raymond Newcombe of 15 July 1988, she gave a history of her pain having been reduced by sixty per cent with the stimulator. She said that the stimulator helped with sleeping and sitting, socialising and doing things around the home. In addition she was able to return to work, first part-time and then, after twelve months, full time. She continued to work for about nine years, and became the office manager of the AIDS program within the South Australian Health Commission.
9. Unfortunately the stimulator had to be removed in 1993 due to infection. After unsuccessful attempts to overcome this problem the stimulator was permanently removed early in 1994. After the removal of the stimulator her pain and disability slowly got worse. She was placed on MS Contin. She was unable to continue to work, and Comcare determined on 9 March 1995 that she was totally and permanently incapacitated for work (exhibit R1, T121, page 250). She found doing things around the house much more difficult. She continued to do the cooking, because her husband cannot cook, but her husband had to prepare the food for her cooking.
10. As a result of concerns that her then GP was over-prescribing pain medication, the management of her medication was taken over by Dr Cherry. She has continued to take narcotic medication for her pain and other medication to manage her epilepsy, but has not taken medication for depression since the late 1990s.
11. Later Mrs Cavanagh went to live on South Neptune Island, where she and her husband undertook observations for the Bureau of Meteorology. She lived there on her own for short periods of a week or two in 1988 and 1989, and was able to continue to make and record the weather observations. After that she lived on her own for about two years in Port Lincoln.
12. In some respects we found Mrs Cavanagh's evidence to be unreliable. There were inconsistencies in various aspects of her evidence, including the date of onset of incontinence. However, we take into account the effects of her chronic pain, protracted treatment, emotional and psychiatric difficulties, medication and epilepsy. She said that her memory has been affected, and this is referred to in her medical records. On balance, we find that she did her best to give a truthful account of her condition and symptoms over the years, and we accept her evidence in substance.
13. Mr Cavanagh also gave evidence in which he described his observations as to the effect of the injury and its aftermath on Mrs Cavanagh, as well as describing matters relevant to the claim for household services and attendant care services. His evidence was generally consistent with Mrs Cavanagh's evidence.

1. Section 14(1) of the 1988 Act provides for compensation for injuries, 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."

1. Section 4(1) of the 1988 Act defines "injury" to include "a disease suffered by an employee". The expression "disease" is defined 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."

1. The word "ailment", which is used in paragraph (a) of the definition of "disease", is defined in s 4(1) to mean "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)". The expression "aggravation" is defined in s 4(1) to include "acceleration or recurrence".
2. Under s 24 of the 1988 Act, where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury. Under s 29, compensation is payable for household and attendant case services that are reasonably required by an injured employee.
3. The 1988 Act contains a number of provisions conferring entitlement to heads of compensation in circumstances where Comcare is liable to pay compensation by virtue of s 14. Where a determination has been made by Comcare in relation to claims for specific heads of compensation, provision is made in s 52 of the 1988 Act for Comcare to reconsider such determinations, either of its own motion or at the request of a claimant or other affected entity. Under s 64, claimants or other affected entities may apply to this tribunal for review of decisions made on reconsideration.

1. It follows from the structure of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and the 1988 Act, as explained in Lees v Comcare [1999] FCA 753; (1999) 56 ALD 84, that the jurisdiction of this tribunal arises only after there has been a primary decision by Comcare, and then a decision on reconsideration made pursuant to s 62 of the 1988 Act. This tribunal does not have an inherent jurisdiction or powers that may be exercised at large. Its jurisdiction must be found in legislation other than the AAT Act that confers jurisdiction on it : Re P G Laird and Australian Broadcasting Tribunal (AAT 78/122, 10 May 1979). Its powers for the purpose of reviewing a reviewable decision are to exercise all the powers and discretions that are conferred by that other legislation on the person who made that decision (s 43(1) of the AAT Act).

1. The claim for permanent impairment expressly refers to diagnoses that include arachnoiditis. For reasons to which we refer to below, we have concluded that Mrs Cavanagh has a conversion disorder that is exacerbating the effects of arachnoiditis. However, Comcare did not have before it a claim for, or diagnosis of, conversion disorder when it made its primary decision or the decision on reconsideration; we therefore need to determine our jurisdiction to consider whether we can take into account any permanent impairment that might result from a conversion disorder when we consider the application to review Comcare's reviewable decision.
2. In Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 Madgwick J decided that this tribunal had jurisdiction to review a decision by Comcare rejecting a claim for right carpal tunnel syndrome, notwithstanding that after Comcare had rejected this claim at a primary level and again on reconsideration, the applicant reformulated his claim to encompass a broader right arm and shoulder condition. At [18] his Honour set out the following legal propositions relevant to the tribunal's jurisdiction.

"1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that lay people of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.

1. In deciding what injury it is, as to which a claimant has given notice, the purposes of giving notice must be borne in mind. These are to enable Comcare, with the aid of the relevant employing agency, to determine whether the claim should be met.
2. The powers of an original decision-maker would extend to regarding informal notice as having been given in amplification of a notice formally given.
3. Those powers would further extend to enabling a consideration of a claim better explaining, or better justifying, a claim in respect of an injury in respect of which notice had been fairly given.
4. There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount."
5. We note that proposition no. 4 in the above extract from Abrahams contemplates the provision of a claim better explaining or better justifying a claim in respect of an injury in respect of which notice has been fairly given. Other material apart from the notice of injury may also assist Comcare to understand the claim being made or the injury that is asserted. This information should in all cases include the claim for compensation and any supporting medical certificate accompanying it, being matters contemplated by s 54 of the 1988 Act. In addition, in many cases such as the present, where a claim for permanent impairment is made some years after the original claim for an injury, there will often be a history of investigation and treatment. This may further explain the later claim, and so assist the decision-maker to interpret it, and to have a fair opportunity to investigate it.
6. Further, where it is asserted that an injury has resulted in permanent impairment Comcare is directed by s 24(2) of the 1988 Act to have regard to the duration of the impairment, the likelihood of improvement in the employee's condition, whether the employee has undertaken all reasonable rehabilitative treatment for the impairment, and any other relevant matters. We consider that when considering a claim for permanent impairment, the determining authority should review the history of the employee's condition, and also the factors which might impact upon the employee's condition and lead to permanent impairment. If the employee's medical history adverts to differential diagnoses, or to the likely existence of other conditions not dissimilar to a claimed condition that might impact upon a condition for which liability has previously been accepted or established, then in our view liability for such matters should be determined, if necessary after further investigation, when assessing the claim for permanent impairment. Any failure of the determining authority to do so should not in our opinion deprive this tribunal of jurisdiction to investigate and determine such matters.
7. We consider that this view of the tribunal's jurisdiction is consistent with such cases as Department of Social Security v Alvaro [1994] FCA 1124; (1994) 34 ALD 72 and Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 211 ALR 261 at [28], which indicate that jurisdiction is not affected by any invalidity in the decisions of primary or second tier decision-makers, or by such matters as a failure to comply with a procedural requirement, or committing an error of law either in determining the applicable law or in applying it. We also regard our view as consistent with what has been referred to as the inquisitorial function of this tribunal in cases such as Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at [47] - [51], where the court said in relation to a claim for benefits under the Veterans' Entitlements Act 1986 (Cth), that the tribunal "is obliged not to limit its determination to the "case" articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant." The court did not suggest in that case that this tribunal's jurisdiction was fettered by any failure on the part of the Commission or the Veterans' Review Board to consider an alternative diagnosis which had not been claimed by the applicant.
8. In addition, it seems to us that practical difficulties would arise if a narrow view were to be taken of the jurisdiction of this tribunal to assess and take into account the overall condition of an employee when reviewing a decision in relation to a claim for permanent impairment. As a general rule the tribunal is in a much better position than the person who made the reviewable decision to make such an assessment. The tribunal is usually constituted to include an experienced medical practitioner; it conducts a hearing de novo, the focus of which is not whether the reviewable decision was correct, but to arrive for itself at the correct or preferable decision; the tribunal has the advantage of hearing detailed oral evidence that has been tested in cross-examination; and each party is given an opportunity to identify and make submissions concerning issues that arise before and during the hearing. It is not uncommon (as occurred in the present proceedings) for one or more new issues or alternative diagnoses to be raised and for these to be fully investigated during the hearing in order to determine their relevance to other issues or diagnoses that were taken into account in the decision under review. If an overly restrictive view were taken of this tribunal's jurisdiction to determine liability for some similar or kindred aspect of the employee's condition relevant to a claim for permanent impairment, that would lead to assessments of permanent impairment being made on a piece-meal basis, and would protract the administrative decision-making process.
9. In the present matter, there were many references to a psychological component in Mrs Cavanagh's presentation in the medical history which Comcare had received before the claim for permanent impairment was made. Such references appear in the early stages of her medical history in the notes of the Canberra Hospital (exhibit R31, tab 2) and in reports provided by certain doctors who reviewed Mrs Cavanagh when she was being assisted by the Memorial Hospital pain Clinic (see the report of Dr T A R Dinning of 18 June 1981, exhibit R1, page 108; the report of Dr Hallett dated 11 August 1981, exhibit R3, page 119; the report of Dr Thomas dated 18 August 1981, exhibit R3, page 121; and the report of Dr Waters dated 9 November 1981, exhibit R1, page 130). Further references were made to the psychological component of her condition when she came under the care of the FMC Pain Management Unit (see Dr Burvill's reports of 6 July and 29 December 1983, and 31 January 1995, exhibit A6; references in the FMC hospital notes, exhibit R31, tabs 13 and 14; and Professor Cherry's report of 10 February 2005, exhibit R3, page 28). Other similar references appear in a report of Dr M G Maguire dated 16 October 1981 and in a report of her former GP, Dr Ireland, dated 19 June 1985 (exhibit R8).
10. We think that having regard to the material previously in Comcare's possession and to the fact that the claim for permanent impairment referred to conditions or diagnoses that included chronic depressive symptoms, arachnoiditis and depression, Comcare was given adequate notice that there was a psychological component to the claim, and was also afforded an adequate opportunity to investigate the nature and extent of that component of her claim. We do not think that a diagnosis of a conversion disorder, being the specific diagnosis arrived at by Professor Goldney by reference to the Diagnositc and Statistical Manual of Mental Disorder, (4th Edition Text Revision) (DSM-IV), is (to use the analysis of Madgwick J in proposition no. 5 in Abrahams at [18]) a change that is sufficiently fundamentally different from the injuries that were referred to in her claim for permanent impairment. We think that the present matter falls on the positive side of the (often elusive) dividing line referred to by his Honour in Abrahams. We therefore conclude that in considering the claim for permanent impairment, we have jurisdiction to determine liability for and impairment from the conditions of both arachnoiditis and a conversion disorder, notwithstanding that the claim did not expressly refer to a diagnosis of the latter condition.
11. For the sake of completeness, we add that in our view, we have jurisdiction to review the decision with respect of the claim for permanent impairment notwithstanding that there has been no prior decision on liability under s 14 of the 1988 Act for a conversion disorder that is asserted to give rise to permanent impairment. Ordinarily, as observed in Lees v Comcare (supra), liability will have been determined or accepted prior to the time when a claim for permanent impairment is made, but there may be cases (described in Lees at [49] as rare) where this is not so. Of course, on receiving a claim for permanent impairment, the decision-maker will no doubt first consider the issue of liability under s 14, and then the degree of permanent impairment under s 24. However, if liability has not previously been accepted or determined for some condition that is relevant to the claim for permanent impairment, then in our view the primary decision-maker should determine that issue as a first step in determining the claim for permanent impairment. Any failure to do so on the part of the primary decision-maker or a decision-maker on review should not, consistently with authorities such as Alvaro and Zubair (supra), deprive this tribunal of jurisdiction, particularly where the asserted condition is related to an injury for which liability has previously been determined or accepted.

1. We next consider our jurisdiction in relation to the claim for arachnoiditis. It will be necessary for us to evaluate all of the evidence before us in relation to the competing diagnoses of Mrs Cavanagh's symptoms and to make findings in relation to those diagnoses, since if we find that one or more of them is applicable that may lead us to conclude that she does not suffer from arachnoiditis. However, this claim is confined to a claim for arachnoiditis, and makes no reference to any psychological condition or component. A bare claim for a nominated condition entailing a specific diagnosis where there is no reference to any functional component does not involve the same considerations as a claim for compensation for permanent impairment, which in our view, for the reasons referred to above, requires a broader review of the claimant's history and condition, especially where the claim refers to a psychological component relating to the claim for arachnoiditis. We therefore consider that we do not have jurisdiction in the separate proceedings relating to the claim for arachnoiditis to determine whether Comcare is liable to pay compensation in respect of the injury or injuries that would apply if we were to accept one or more of the postulated alternative diagnoses (namely degenerative lumbar spondylosis, spinal canal stenosis and conversion disorder), because there has been no reviewable decision by Comcare as to whether it is liable for any such injuries. Nevertheless, because the hearing of those separate proceedings has occurred in conjunction with the claims for permanent impairment, and because we have concluded that we can consider the alternative diagnoses in that matter, we will proceed to determine the issue of liability in order to determine the application for review of the decision in relation to permanent impairment.

Jurisdiction re Claim for urinary and faecal incontinence

1. The claim for urinary and faecal incontinence is contained in a letter dated 8 February 2006 from the applicant's husband in which he requested that "Comcare issue a determination regarding the admission of liability for urinary and bowel incontinence" (exhibit R4, page 1). The claim is not stated to be secondary to arachnoiditis or to any of the other potential diagnoses or conditions that would cause incontinence. We consider that in order to determine liability for the claimed conditions of incontinence, we have jurisdiction to determine whether any of the postulated diagnoses of those conditions are applicable.

1. We will now consider each of the four reviewable decisions. It is convenient first to deal with the claim for arachnoiditis and then with the claim for urinary and faecal incontinence.

1. Mrs Cavanagh relies upon the history of her symptoms since her myelogram at the Canberra Hospital on 25 January 1973 in support of her claim for arachnoiditis. She also relies on various references in the extensive material before us that indicated that she could be, or was, suffering from arachnoiditis. This material includes reports of Professor Cherry, who was previously the Director of the Pain Management Clinic at the FMC, as well as references in various medical reports identified in a letter dated 23 August 2004, in which Mr Cavanagh requested a review of the primary decision by Comcare to disallow the claim for permanent impairment (exhibit R1, T139, page 327). In addition, Mrs Cavanagh relies on an operation record dated 1 May 1973 prepared by the assistant to Dr Roebuck, a surgeon who conducted an operation on that day to explore her lumbar spine. This record included the statement "Some arachnoiditis was present around the L4 root on the (left). Laminectomy not performed." (exhibit R30, tab 2).
2. In the proceedings before us Comcare denied that Mrs Cavanagh is suffering from arachnoiditis, in reliance principally on the opinion to that effect from a neurosurgeon to whom Comcare referred her, namely Associate Professor Stoodley. He has a particular interest in arachnoditis, and his academic and professional record is set out in some detail in his curriculum vitae (exhibit R32). He examined Mrs Cavanagh at Comcare's request on 10 June 2005, and reviewed extensive medical records relating to her initial injury and subsequent medical history. In a report dated 15 August 2005 (exhibit R33) Dr Stoodley concluded that there was a "high likelihood of underlying psychological factors exacerbating the problem", and that he could find no evidence in his examination that would "definitely indicate" arachnoiditis. He considered that Mrs Cavanagh was suffering from degenerative lumbar spine disease "with a possible addition of mild arachnoiditis", but that arachnoiditis was only a "minimal contributing factor" to her symptoms, and that the main condition from which she was suffering appeared to be psychological and beyond the area of his expertise. He did not believe that there had been any significant development or worsening of arachnoiditis during the time since 1988. He gave lengthy evidence further explaining and confirming the opinion he expressed in that report, and in two subsequent reports which were also tendered.
3. As against this, Professor Cherry gave evidence that he considered her pain to be genuine and substantially organic in origin, and he said that he would not have inserted the spinal stimulator if he had not thought that this was the case. The relief which Mrs Cavanagh received from the stimulator tends to support Professor Cherry's assessment. Further, there does not appear to be any suggestion in any of the medical records before us that she has deliberately falsified her complaints of pain and disability, and we find that she has not done so.
4. It was accepted by the parties that an MRI examination would greatly facilitate a determination of whether or not the condition of arachnoiditis exists. However, it would now be unsafe to carry out an MRI examination, because although the spinal stimulator was ultimately removed in 1994, the leads were not removed.

1. As mentioned above, Comcare rejected the claim for arachnoiditis, but accepted a condition of "inflammatory reaction" in response to the claim. However, we understand the condition of arachnoiditis that is the subject of the applicant's claim to be a condition entailing scarring within the inside of the dural membrane surrounding the nerves within the spinal column, being scarring that is asserted to have arisen from inflammation of the membrane caused by a reaction to myodil injected into the spine at the time of the myelogram in January 1973, or by the continued presence of myodil in the spine for some years afterwards. As we understood his evidence, Dr Stoodley also used the term "arachnoiditis" to designate a condition arising from scarring (transcript, page 259, line 8). Accordingly, when we use the term "arachnoiditis" in these reasons, we do not refer to the initial inflammation of the membrane, but rather the scarring resulting from that inflammation.
2. Mrs Cavanagh relies strongly on references to arachnoiditis in reports from Professor Cherry, who has supervised her treatment at the FMC Pain Management Unit for the last 25 years. It is clear, however, from Professor Cherry's evidence that he accepted that Mrs Cavanagh had chronic back pain, and he considered that his role was to treat her pain, and that it was not an essential aspect of his treatment to arrive at a precise diagnosis of the cause of her pain (transcript, page 173, line 43). He referred to three possible causes of her chronic pain, namely degenerative lumbar spondylosis, spinal canal stenosis and arachnoiditis, but said he did not need to determine whether all or any of those diagnoses were the cause of her pain. He also considered that there is a psychological component to her pain. In evidence he said that Mrs Cavanagh could be suffering from arachnoiditis, but made it clear that he had not made a diagnosis to the effect that she is in fact suffering from that condition.
3. We referred above to the record relating to the exploratory operation on 1 May 1973, and to the reference in this record to "some arachnoiditis" being present. We do not regard this as conclusive. We accept Dr Stoodley's evidence to the effect that it is very unlikely that the operation performed on 1 May 1973 would have entailed opening the dura to inspect the intradural compartment; this would have been an extremely unusual and potentially unsafe procedure, and would have increased the possibility of infection and of the spinal fluid leaking out through the operation wound (see Dr Stoodley's report of 16 January 2008 at page 2, and transcript at pages 270 to 271). We agree with Dr Stoodley's interpretation that the operation record was referring to some scarring around a nerve root, and that this did not constitute arachnoiditis.
4. Mrs Cavanagh further relied on the report of a myelogram on 18 January 1983, which includes the statement:

"The nerve root sheaths did not fill perhaps as well as normal, however this was the only manifestation of arachnoiditis." (exhibit R5)

However, we also accept Dr Stoodley's new view that this report is inconclusive, since the qualification of "perhaps" indicates only that the presence of some arachnoditis was possible.

1. A number of other doctors have referred to arachnoiditis as the cause, or possible cause, of Mrs Cavanagh's symptoms, but in many cases those doctors appear to have accepted that position based on reference to arachnoiditis in earlier records, or perhaps because Mrs Cavanagh had provided them with a history of what she had understood her condition to be. It appears that in most cases the doctors concerned did not attempt to arrive at an independent diagnosis for themselves.
2. Nevertheless, there is evidence before us that is consistent with a diagnosis of mild arachnoiditis. We refer to the following matters.

(a) Mrs Cavanagh underwent a myelogram in 1973, and it is well known that myodil, an oil-based substance that was used at that time, resulted in arachnoiditis in a small minority of cases. The myelogram procedure entailed removing the dye at the conclusion of the examination, but in Mrs Cavanagh's case, there is evidence that not all of the dye was removed, and that some dye remained until at least 1983 (see exhibit R5).

(b) Ever since the myelogram Mrs Cavanagh has suffered chronic back pain and sciatica in the left leg.

(c) Her pain was significantly reduced during the period for which she used the spinal stimulator, and this indicates that her pain had a neurological source that was relieved by that device.

(d) She also developed sensory anaesthesia in the left perineal area and left buttock (see exhibit A2, which records the findings of her GP, Dr Toogood, and the report by Dr Williams, a gastroenterologist, of 13 April 2007, which is included in exhibit R36).

(e) She has complained of numbness in the lateral aspect of her left foot for many years.

(f) There appears to be no other probable explanation for the continuing chronic back pain and the other sensory symptoms apart from arachnoiditis. There was no radiological evidence of any injury to her spine when she hurt her back in December 1972, since the myelogram on 25 January 1973 was normal, and the spinal exploration on 1 May 1973 did not reveal any nerve root compression. Subsequent CT scans and x-rays did not suggest any significant degree of degenerative disease, and in any event this would not explain the persistence of chronic pain in the early years after the accident, when she was a relatively young woman. It appears highly unlikely that she is suffering from spinal canal stenosis; we accept Dr Stoodley's evidence that there was no objective evidence of this, and her clinical presentation was inconsistent with that diagnosis (transcript, page 274**,** line 4, and page 275, line 6). Whilst we think it likely that there is also a psychological component to her pain, it is unlikely that this would explain the significant relief that she obtained from the spinal stimulator, or explain her symptoms of anaesthesia and numbness. Finally, on our above assessment of Mrs Cavanagh's credibility, we do not think that she has fabricated her description of pain, sciatica and sensory loss.

(g) Dr Fenwick performed a sub-dural local anaesthetic and steroid injection in October 1983 in the L1 area. He found that the onset of the block was extremely patchy, and also that the block took some eighteen hours to wear off. He said in evidence that this was most unusual, in that the usual offset time was between four to eight hours. He repeated this procedure about a month later, and whilst on that occasion the onset of the block was very rapid and the spread uniform, the offset again took eighteen hours in the left leg (see exhibit R1, pages 137 and 143). Dr Fenwick said in his evidence that the lengthy offset was consistent with arachnoiditis, in that scarring within the dural space would explain the unusually slow offset of the block, as it would impede the flow of the anaesthetic solution.

1. We note that Mrs Cavanagh's symptoms do not accord with the usual presentation of arachnoiditis, in that her sensory loss is unilateral, and generally arachnoiditis affects a cluster of nerves and would produce bilateral symptoms. But as Dr Stoodley accepts, this is not necessarily the case, and arachnoiditis can also affect a small number of specific nerves (transcript, page 297, line 37 and page 298, line 11). Whilst the position on the evidence before us is not clear, and we do not have the benefit of evidence of an MRI examination, we find on balance, having regard to the combination of the matters referred to in the preceding paragraph, that Mrs Cavanagh is suffering from arachnoiditis, which can be described as mild in the sense that it is only affecting certain specific nerves. We further find that her pain has been exacerbated by psychological factors, which over the years have included conditions of depression and a conversion reaction. We will refer below to the evidence relating to psychological aspects when we consider the claim for permanent impairment.
2. The claim for arachnoiditis was made pursuant to the 1988 Act. A transitional section, s 124(1) provides in effect that subject to Part X, that Act applies in relation to an injury suffered by an employee, whether before or after the commencing day. Section 124(1A) then provides in effect that, subject once again to Part X, a person is entitled to compensation under the 1988 Act in respect of an injury suffered before the commencing day if compensation was, or would have been, payable to that person in respect of that injury under (relevantly) the 1971 Act. The issue of Comcare's liability, whether under the 1971 Act or the 1988 Act, will depend on whether arachnoiditis was an injury or disease for the purpose of those Acts.
3. When considering the question of whether a condition was an injury or disease, Gleeson CJ and Kirby J said in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 200 CLR 286:

"All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an "injury" in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker's employment ... If the propounded "injury" is distinct from the underlying pathology that constitutes a "disease" that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met ... ."

1. Arachnoiditis, as mentioned above, arises from a pathology of scarring, being a gradual process rather than a sudden event. We accordingly find that arachnoiditis is a disease. As mentioned above, the Commonwealth accepted liability for intervertebral disc protrusion. This occurred on 16 February 1977, being very soon after Mrs Cavanagh's initial injury (exhibit R1, T6, page 51). Whatever might have been the position then, we are satisfied, having regard to the history of her symptoms, that by a date not later than when she left Canberra in 1977, her ongoing chronic pain and disability were not caused by intervertebral disc protrusion, but by mild arachnoiditis with a psychological overlay. We are accordingly satisfied that the condition of arachnoiditis would have existed well before the coming into operation of the 1988 Act. Under s 124(1A) of the 1988 Act, we must therefore consider whether compensation would have been payable to Mrs Cavanagh under the 1971 Act.
2. The 1971 Act applied to and in relation to employees of the Commonwealth or of a prescribed authority of the Commonwealth (s 7(1) of the 1971 Act). Section 29(1) provides relevantly that where an employee contracts a disease resulting in total or partial incapacity for work then the contraction of the disease is deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth. Section 5(11) of the 1971 Act provides relevantly in effect that the incapacity of an employee shall be taken to have resulted from an injury to the employee or from a disease contracted by the employee if the injury or disease contributed to the incapacity. We have already found that the arachnoiditis resulted from the myelogram, and the myelogram was undertaken in the course of investigating the symptoms from which Mrs Cavanagh was suffering as a result of her earlier injury at work. We are therefore satisfied that her employment contributed to the development of arachnoiditis. None of the exclusionary provisions referred to in s 124 or 124(1A) are applicable, and we accordingly find that Comcare is liable for arachnoiditis.

1. 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.
2. 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.

1. 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."

1. 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.
2. 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.
3. 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.
4. 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."

1. 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.
2. 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.
3. 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.
4. 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.

1. As mentioned in paragraph 2 above, Mrs Cavanagh described her permanent impairments as "chronic pain; restricted movements; seizures, chronic depressive symptoms" (exhibit R1, T131, page 277). The claim is dated 8 June 2004. It does not refer to incontinence, although at page 281 of exhibit R1, in dealing with non-economic loss, Mrs Cavanagh ticked the box headed "Marked disadvantages", and added in paragraph 3.2 "sexual dysfunction, gastrointestinal side effects, phobia of seizures."
2. We accept Mrs Cavanagh's evidence that she has suffered from chronic back pain and sciatica for many years, and that this has led to restricted movements. We also find that she suffered from epileptic seizures, and that this condition first emerged in 1983. We also accept that she has from time to time been diagnosed as suffering from depression, and this condition was diagnosed by Dr Burvill in 1983. There was some evidence before us as to lack of sexual activity for some years, but no evidence of sexual dysfunction.

Consideration of Claim for permanent impairment

1. Section 24 of the 1988 Act entails assessing the degree of "permanent impairment" of the employee by reference to a document prepared pursuant to s 28(1) called the "Guide to the Assessment of the Degree of Permanent Impairment". The word "impairment" is defined in s 4(1) to mean "the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function." The word "permanent" is defined to mean "likely to continue indefinitely". Under s 39 of the 1971 Act, a lump sum could be awarded for certain specified impairments resulting from employment related injuries. However, the specified impairments did not include the conditions referred to in Mrs Cavanagh's claim for permanent impairment. Notwithstanding that, Mrs Cavanagh would be entitled to compensation for permanent impairment under the 1988 Act if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment, that is the development of a new impairment : Comcare v Maida [2002] FCA 1284; (2002) 36 AAR 69. In this case, Mansfield J said at [28] that the following propositions correctly summarise the position:

"(1) The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.

(2) If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.

(3) A significant worsening of any impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment - that is, the development of a new impairment."

His Honour's approach was approved in Comcare v Mathieson [2004] FCA 212; (2004) 79 ALD 518 at [51].

1. Mrs Cavanagh claims that immediately before the coming into operation of the 1988 Act, the degree of impairment from which she was suffering had been significantly relieved by the spinal stimulator, and that following its removal in 1993, her condition deteriorated significantly, so that it constituted a new or distinct impairment as contemplated by the third proposition referred to in Maida.
2. In order to apply the principles laid down in Maida, it is first necessary to determine whether Mrs Cavanagh's position had become permanent before the commencement of 1988 Act, and if so, the nature and extent of her permanent impairment.
3. Insofar as the claim for permanent impairment relates to depression, we note that Mrs Cavanagh ceased taking medication for depression in the late 1990s (transcript, page 39, lines 25 - 27). Whilst Mrs Cavanagh was treated for depression in the past, we accept Professor Goldney's opinion that she is not currently suffering from depression, but is suffering from a conversion disorder contributed to by her injury in 1972 (see his reports of 6 October and 14 December 2005, exhibit R34). His opinion that she is not suffering from depression is consistent with that of Dr Rathjen, a psychiatrist who previously worked at the FMC Pain Management Clinic. She reported on 15 February 2008 that she had assessed Mrs Cavanagh on 18 May 2007, and did not think that she had a major depressive disorder, but was affected by "significant grief and loss issues, especially related to her back problem" (exhibit A4, page 2).
4. There is no evidence that there has been a change in the degree of impairment resulting from epilepsy since the date when that condition first appeared.
5. We now turn to the relevance of the spinal stimulator. Professor Cherry said in evidence that with some patients, spinal stimulators cause very few ongoing problems, and may provide relief for many years. However, it is necessary for us to consider the position of Mrs Cavanagh, and not the statistical information relating to a majority of patients who may have been treated with a spinal stimulator. We refer in this regard to State Government Insurance Commission (South Australia) v Laube (1984) 37 SASR 31, at [33], where a former Chief Justice of South Australia referred to statistical evidence, and said:

"... I am clearly of the opinion that the statistical fact that a particular proposition is true of the majority of persons cannot of itself amount to legal proof on the balance of probabilities that the proposition is true of any given individual. The fact that most people with a blood alcohol level of 0.15 per cent are incapable of exercising effective control of a motor vehicle does not establish against any individual with that blood alcohol level that that individual is so incapable."

1. Whilst Mrs Cavanagh and those treating her no doubt hoped that the stimulator would provide permanent relief, this did not in fact occur. An infection occurred and the stimulator had to be removed. It is well established that courts and tribunals may determine issues with the benefit of hindsight, where evidence is available prior to the time when a decision is given : see the authorities cited in Re Wagener and Comcare [2003] AATA 1083; (2003) 78 ALD 596 at [33] - [34]. A recent example of that approach in the context of a claim for permanent impairment is Excell v Comcare [2008] FCA 757, at [41].
2. We therefore think that it is necessary to assess the degree of Mrs Cavanagh's permanent impairment on the basis that the stimulator was destined to fail, and to examine her position before the stimulator had been inserted. By then, she was in the care of Professor Cherry and other clinicians at the FMC Pain Management Unit. She had completed her rehabilitation training and was receiving treatment for depression and medication for her chronic pain and for her epilepsy. Notwithstanding this treatment, it is clear from the evidence of both Mr and Mrs Cavanagh that she was significantly impaired; she was unable to work, continued to suffer chronic back pain and sciatica and to suffer from emotional or psychological problems, and had restrictions in movement and difficulty in sleeping. Her ability to attend to gardening and other household and personal matters was much restricted. She said that following the removal of the stimulator her condition became significantly worse again. We find that her pain and disability before, during and after the implant of the spinal stimulator was caused by arachnoiditis and an associated conversion disorder, for which Comcare is liable.
3. We further find that the level of Mrs Cavanagh's permanent impairment after the removal of the stimulator is not significantly worse or different than it was before the stimulator was inserted, and so she has not suffered a new or distinct impairment since the coming into operation of the 1988 Act. Her condition appears to have gradually become worse over recent years, but that is not sufficient to confer a right to compensation for permanent impairment under s 24, in circumstances where liability arises under the 1971 Act. Comcare is not liable therefore for non-economic loss under s 27, since under s 27(1) that liability only arises where compensation is payable under s 24.
4. Our above conclusions as to the claim for permanent impairment do not take into account the issue of incontinence. If on further investigation it appears that her employment materially contributed to her incontinence, then that would be a new or distinct impairment, and Mrs Cavanagh would be entitled to lump sum compensation for that impairment, depending on the degree of permanent impairment assessed.

Claim for household services and attendant care services

1. In an application dated 8 July 2004 (exhibit R1, T136, page 315), Mrs Cavanagh lists various tasks she was unable to perform due to her compensable condition. Her application was supported by her then GP, Dr Mills of Port Lincoln, who recorded that she was able to undertake cooking and minor cleaning, that is dusting, but could not undertaking washing, ironing, cleaning the house, shopping, washing her own hair, lifting more than two kilograms, gardening or maintenance, due to her chronic back pain and her injury, which he said had left her "severely impaired" (exhibit R1, T136, page 318).
2. Mrs Cavanagh called Ms Donna Carpenter, a physiotherapist who was previously employed as a rehabilitation consultant by the Commonwealth Rehabilitation Service. Ms Carpenter gave evidence that she assessed Mrs Cavanagh's needs in August 2004, and as to the outcome of that assessment. Her assessment accorded closely with the claim currently being made by Mrs Cavanagh, except that Ms Carpenter assessed the requirement for shopping assistance at three hours per week instead of the claim of six hours per week, and gardening and maintenance assistance at three hours per week instead of 5.5 hours per week (see the comparative figures in exhibit R29). Ms Carpenter also assumed that Mrs Cavanagh was unable to cook, but Mrs Cavanagh explained in her evidence that whilst her husband does most of the preparation for cooking, she continues to do the actual cooking.
3. Counsel for Comcare submitted that Ms Carpenter was clearly sympathetic to Mrs Cavanagh, and that her assessment was generous. Whilst we note Ms Carpenter's misunderstanding as to cooking, that may not have affected her overall assessment if allowance is made for Mr Cavanagh's assistance in relation to cooking. We are inclined to think that the claim for personal assistance is somewhat high, and we note that Ms Carpenter's assessment assumes that assistance is needed for bladder and bowel incontinence, whereas in our view there is insufficient evidence at this stage that incontinence was due to the injury. Taking into account the evidence before us and the extent of Mrs Cavanagh's disability except for her incontinence, we consider that the hours of assistance recommended by Ms Carpenter, as set out in the third column of exhibit R29, represent a reasonable assessment, except that the last item should be reduced to say eleven hours per week. In summary, therefore, and leaving aside at this stage the question of whether Mr Cavanagh might reasonably be expected to assist, we accept that it would be reasonable for compensation to be paid for the following services: laundry assistance (washing, drying, ironing) four hours per week; household cleaning (vacuuming, sweeping, mopping, dusting, cleaning kitchen, cleaning bathroom, making beds) five hours per week; cooking seven hours per week; shopping three hours per week; gardening and maintenance three hours per week; and personal assistance (dressing, washing, brushing/drying hair, shaving legs and monitoring medication) ten hours per week, including travelling to medical appointments.
4. Section 29 of the 1988 Act provides for compensation for household services and attendant care services. Section 29(2) provides for a number of non-exclusive matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, and s 29(4) contains corresponding provisions relating to attendant care services. One of the matters which is to be taken into account in determining the household or attendance care services that are reasonably required is the extent to which a relative of the employee might reasonably be expected to provide the services in question. Under s 29(2)(e), it is necessary also to have regard to the need to avoid substantial disruption to the employment or other activities of any such relative (or other person available to provide assistance), but curiously this matter does not appear in s 29(4).
5. In the present case, Mr Cavanagh has carried out the relevant services for some time, and it is clear from his evidence that he intends to continue to do so. Whilst he has been looking for opportunities for employment, he explained that he is looking for work that he could do from home, so that he would be able to continue to provide the assistance which Mrs Cavanagh needs. Mr Cavanagh is not working at present. In his present circumstances, we consider that he can reasonably be expected to provide the household and attendant care services for which Mrs Cavanagh is claiming compensation.
6. We therefore conclude that Comcare is not liable for compensation for such services. If Mr Cavanagh's position changes, because for example he has an opportunity to take up employment or becomes unwell so that he would no longer be able to provide the services, it would be appropriate to reconsider Mrs Cavanagh's entitlement, and no doubt in such circumstances she would lodge a further claim.
7. We have assumed in determining Mrs Cavanagh's claim for household and attendant care services that she would have been entitled to compensation for such services under the 1971 Act, for the purposes of the transitional sections in the 1988 Act. We note that s 48 of the 1971 Act confers entitlement to compensation where the injured employee "reasonably requires the constant help or attendance of another person". In view of our above conclusion, it is unnecessary for us to consider whether the assistance that forms the basis of Mrs Cavanagh's claim would constitute a requirement for such constant help or attendance.

(1) In matter number S 200400402, relating to the claim for household help and attendant care services, the tribunal affirms the decision under review.

(2) In matter number S 200400403, relating to the applicant's claim for compensation for permanent impairment, the tribunal affirms the decision under review.

(3) In matter number S 200600258, relating to the claim for arachnoiditis, the tribunal sets aside the decision under review, and in place of that decision, decides that the respondent is liable for arachnoiditis.

(4) In matter number S 200600259, relating to the claim for urinary and faecal incontinence, the tribunal remits the decision under review to the respondent for reconsideration, pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the 85 preceding paragraphs are a true copy

President D G Jarvis and Professor P L Reilly AO, Member

Signed: .....................................................................................

Date/s of Hearing 19, 20, 21, 22, 23 and 26 May 2008

Solicitor for the Respondent Australian Government Solicitor