Our Lady of Loreto Nursing Home v Olsen [2000] NSWCA 12 | Case summary

1 MASON P: I agree with Handley JA. 2 HANDLEY JA: The respondent worker suffered a back injury in the course of her employment with the appellant on 4 January 1994. She underwent surgery on a number of occasions between 22 November 1995 and 27 January 1998. Her entitlements to weekly compensation, and to lump sum compensation under ss 66 and 67 of the Workers Compensation Act 1987 (the Act), are not in dispute. However disputes as to her entitlements to payment for nursing and other care pursuant to ss 59 and 60 were litigated before Burke CCJ and upheld in part. The employer has appealed as of right to this Court. 3 The reasons for judgment of the trial Judge, and the argument in this Court, ranged widely but the actual award made by the Judge was quite limited. These reasons are directed solely to the award dated 16 March 1999 which was in the following terms: "Award pursuant to s 60 in favour of the applicant against the respondent as follows: (a) 15 April 1997 to 21 July 1997 - 12 hours a week @ $15 per hour total: $180 per week a total of $2,520.00 (b) 28 January 1998 to date - 20 hours a week @ $15 per hour, total: $300 a week a total of $17,657.14". 4 Section 59 defines medical or related treatment as including: "(b) therapeutic treatment given by direction of a medical practitioner, … (e) Any nursing … supplied or provided for a worker otherwise than as hospital treatment, (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". 5 Section 60(1) provides, so far as relevant: "(1) If, as a result of an injury received by a worker, it is reasonably necessary that: (a) Any medical or related treatment be given, … the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in sub section (2)". 6 Section 61(5) 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 s 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". 7 The services for the worker covered by par 1(a) of the award were provided by Mrs Macpherson who was a registered nurse. She had been providing nursing care for the worker for some time before 15 April 1997, and payment for that period was not disputed. Mrs Tunks began providing additional care for the worker from the end of April onwards, but Mrs Macpherson continued to provide nursing care until 21 July 1997. 8 During the period covered by par (a) of the award, the worker was in hospital having traction between 16 and 21 May, and was again in hospital for surgery and recovery between 16 June and 10 July. Since the worker had full time care in hospital during these periods, there was no basis for an award for the cost of nursing under par (e) of the definition of medical or related treatment which only applies to nursing "otherwise than as hospital treatment", or under par (f) which does not apply to nursing care. Accordingly par 1(a) of the award is not supported by evidence in respect of those periods, and is contrary to the evidence, and error of law is disclosed. This part of the award must be varied to exclude the periods spent in hospital. 9 Paragraph 1(a) of the award is supported by evidence for the rest of the period between 15 April and 21 July. The Judge was disposed to infer that the services being provided by Mrs Macpherson, a registered nurse, were nursing care. This inference is strengthened by the evidence that Mrs Tunks, who was not a registered nurse, was also providing care during most of this period. Further confirmation was provided by the report of Jan Christie of 19 November 1997. She first visited the worker at her home on 5 June that year. It appears from this report that one of the graft sites on the worker's body "possibly the postero-lateral mass had not healed as well as expected" because of an underlying history of MRSA which appears to be an infection of some kind. 10 Following the surgery on 16 June, the wound was left open to drain, and while the worker was in hospital her dressings were changed three times a day, but she again contracted MRSA. After her discharge her dressings were changed twice daily at home by Mrs Macpherson until 21 July, and thereafter they were changed twice daily at the surgery of her general practitioner. It is clear therefore that the worker needed nursing care, such as that provided by Mrs Macpherson, between 10 and 21 July. It is a reasonable inference that she required similar care after April when she was at home. In my judgment the appellant has failed to establish that the balance of this part of the award is vitiated by error of law. 11 Paragraph 1(b) of the award required payment for 14 hours of care (other than nursing care) a week within par (f) of the definition of medical and related treatment, and for what the Judge found were 6 hours of nursing care a week within par (e) of the definition. The care was provided by Mrs Tunks, and the issues raised by Mr Maconachie QC for the appellant were whether there was evidence that the care was nursing care within par (e), and if not whether it was care other than nursing care which had been directed by a medical practitioner (par (f)), whether all the care had been "given" (see s 60(1)(a)) "in the worker's home", and whether she had incurred any "cost" (s 60(1)) in the sense of a legal obligation to pay Mrs Tunks for that care. 12 The worker was admitted to St George Private Hospital on 16 January 1998, underwent manipulation of her lumbar spine followed by a postero-lateral fusion at L3-6 on 27 January and was discharged home on 17 February. (See Dr Smith's report of 18 February 1998, CAB 162.) It is apparent that there is an error in the period covered by par 1(b) of the award as the worker was in hospital and not in her own home between 28 January and 17 February. The award for this period cannot be supported and, to this extent, must be set aside. It appears further from the report of Dr Sundar of 1 April 1998 (CAB 33) that after her discharge from St George Private Hospital the worker developed a severe infection of the wound at the incision site and was admitted to Blacktown Hospital with septicaemia and was there treated with antibiotics. The evidence does not disclose the period the worker was in that Hospital, but this is a matter of record, and the award will have to be further varied to allow for this period. 13 Dr Smith's report of 18 February (ibid) states "Mrs Olsen will require home care support". This report was directed to the insurer, but it is a fair inference that Dr Smith gave the same advice to the worker since she obtained care in her home from Mrs Tunks immediately after her discharge from hospital. The doctor wrote again to the insurer on 11 March stating that the worker "needs some home help". On 1 April Dr Sundar in his letter to the insurer that day, which was copied to the worker, summarised her condition and need for care. His report stated: "She is in chronic and constant pain in the back and in the legs. She has some areas of numbness in the legs. She is extremely limited in the time that she can stand up or walk. Hence her mobility is very limited and restricted. She cannot walk unaided and she cannot bend down nor can she carry anything. This affects her daily living activities. She can shower with supervision but needs help with washing and drying the lower part of her body and [putting on] her underwear. She has difficulty going to the toilet but she does get there crawling at times, and again the problem of sitting, undressing and dressing again becomes beyond her capacity. She cannot prepare her own meals and she cannot carry her own dinner plate nor can she sit at the dinner table long enough to finish her dinner before her back gives too much pain. These activities, normal for a fit person, are beyond this lady's capacity, hence she needs some help for herself and … when she is alone and at risk and she needs long term approval for this as well. I cannot stress this any more emphatically". 14 Par (b) of the award covered a period which concluded on 16 March 1999. There is no evidence and no finding that the worker's condition significantly improved during this period, and there is evidence in the reports of Dr Lewington of 24 March and 12 October 1998, and of Jan Christie of 15 September 1998, that her need for care continued substantially unabated. In my judgment Dr Smith's report of 18 February 1998 furnished evidence that the care in the worker's home provided from that day onwards was "directed by a medical practitioner", and his further report of 11 March and Dr Sundar's report of 1 April aided by the presumption of continuance also furnished evidence that the care in the worker's home subsequently provided down to 16 March 1999 had also been so "directed". 15 The Judge upheld the worker's claim under par (e) for three visits a week each of two hours for hydrotherapy at Guildford heated pool, which included time spent being driven there and back. He rejected Jan Christie's opinion for the employer that two visits of two hours a week would be reasonable. He did not consider the question of possible responsibility for this claim as therapeutic treatment given by direction of a medical practitioner under par (b) of the definition. He said: "… Fiona does accompany the worker, three times per week, to the Guildford heated pool. Neither Fiona nor the applicant remain in the home for that particular service and no excursion into sophistry could perceive such to be care of the worker in the worker's home. Such a service seems to fall into the category of nursing within para (e) of the relevant definition. The overlap between what might be called home care and nursing is adverted to in the authorities. That this is a nursing service is a view compatible with dicta in [various cases referred to]". 16 I agree with the Judge's finding that this claim does not fall within par (f). I would also add that there is no evidence that this hydrotherapy was "directed by a medical practitioner" for the purposes of par (f), or was "given by direction of a medical practitioner" for the purposes of par (b). The reports of Dr Smith of 18 February, 11 March and 1 April, of Dr Sundar of 1 April, and of Dr Lewington of 25 March, contain no reference to hydrotherapy. A further report of Dr Lewington of 12 October 1998 (CAB 168) does refer to the hydrotherapy but this report was obtained for medico-legal purposes only a few weeks before trial and Mr Goodridge for the respondent did not rely on it before us as a direction for the giving of the hydrotherapy to the worker. (T53) 17 It was not submitted on behalf of the worker that the definition of medical or related treatment in s 59 was an inclusive one so as to permit claims for such treatment falling outside the terms of the various paragraphs of the definition. It was established "includes" in the corresponding definition in s 10(2) of the former Act meant "means and includes" so that the definition was exclusive and exhaustive. See Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242 and Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 6. The current definition retains the basic structure of the former one and its settled interpretation has generally been accepted as applicable to the new definition. Compare Bresmac Pty Ltd v Starr (1992) 29 NSWLR 318. 18 The scope of par (e) or its predecessor has been considered in a number of cases which, in my judgment, establish that the assistance provided by Mrs Tunks to the worker in connection with her hydrotherapy was not "nursing". In Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1977] 2 NSWLR 827 the majority held that nursing in the corresponding definition in the former Act did not cover domestic assistance. Reynolds JA said at 841: "It is ordinary domestic service. It is true that the worker's disability renders it necessary, but this does not alter the nature and quality of the service required … It would I think be a misuse of language to call a person who did housework for an incapacitated person a nurse, or to describe the work being done as nursing, merely because of the state of health of the employer … In my view it is domestic assistance not only in form but in substance also and cannot be encompassed within the phrase 'nursing provided for him otherwise than as a patient at a hospital'." 19 Hutley JA said at 850: "… there is a radical distinction between the giving of domestic assistance and nursing. A nurse is not necessarily a professionally qualified person but is, in this context, a person with special talents in giving skilled assistance to those who are ill or injured. The assistance which the worker needs is at present purely of a domestic nature able to be given by any person who can work around the house. Whereas a nurse cannot really be directed by the patient, the assistance which the injured worker requires would be subject in all things to his direction". 20 This decision was followed by the majority in Thomas v Ferguson Transformers Pty Ltd (above) and then upheld on appeal by the High Court: (1981) 145 CLR 625. Mason J (whose judgment on this point was concurred in by Gibbs and Wilson JJ) said at 682: "In a suitable context 'nursing' may denote a wider range of activities than those undertaken by a nurse in caring for a patient who suffers from illness or injury … Here … 'Nursing' occurs in a setting of medical services, rendered outside a hospital … Consequently in s 10(2)(c) the word denotes care and attention to a patient which is designed to relieve or remedy the illness or injury from which he suffers. The domestic assistance needed by the injured worker here stands outside this conception". 21 Aickin J (whose judgment on this point was concurred in by Murphy J) said at 686: "… on the facts of this case the domestic assistance in question does not constitute 'nursing' within the definition of 'Medical treatment' … This is not to say that some of the activities now in question could not form part of 'nursing' in a different context. Some of them may be capable of falling within that term if they were incidental to or directly associated with 'nursing' in the strict sense. In the present case however they were not so associated". 22 The care involved in this case involved driving the worker to and from the swimming pool, assisting her in changing into and out of a bathing costume, and assisting her in her movements to and from the pool and in the pool. These activities, however beneficial, called for no special skill or experience on the part of the carer. In my judgment the evidence established that the care thus given by Mrs Tunks was not nursing in the context of medical or related treatment provided for an injured worker within ss 59 and 60. 23 The respondent did not file a notice of contention seeking either to uphold this part of the award under par (b) of the definition as therapeutic treatment given by direction of a medical practitioner, or to secure the remission of this issue to the Compensation Court. The question was referred to in argument and in the respondent's written submissions, and the absence of a formal notice of contention may not have prevented the Court dealing with the claim under SCR Pt 51 r 22. However, for the reasons already given, there was no evidence that the hydrotherapy had ever been the subject of a direction by a medical practitioner. This possible claim therefore need not be further considered by this Court. 24 The other question is whether the worker had incurred a "cost" in securing the services of Mrs Tunks. The decision of this Court in NSW Sugar Milling Co-operative Ltd v Manning (1998) 44 NSWLR 442 establishes that s 60 is an indemnity provision which does not cover voluntary services. The Judge made the following findings on this question: "Over the years of association of the worker and Fiona [Tunks], though initially strangers, they have developed a personal friendship. Fiona, in evidence, said that should the worker be unsuccessful in this present claim for the costs of her services she would not seek payment from the applicant personally. In this circumstance the respondent submits that there is no 'cost' of these services which would be recoverable under the Act. In my view a willingness to forego a debt in certain circumstances is a far cry from affirming the absence of any debt. Fiona has performed services for the applicant at an agreed rate, performed them satisfactorily, and is entitled to the fruits of her labour. That, in some future eventuality, she would be prepared to waive the obligation to pay the debt does not derogate from the existence of the debt". 25 These findings are supported by evidence and the legal principle applied by the Judge was accepted by the High Court in Blundell v Musgrave (1956) 96 CLR 73. In that case a naval rating was held entitled to recover as damages the cost of medical treatment received from the Navy for which he had been charged by the Naval Board, although it had power to waive the charge and forego the debt. The majority said at 86: "It is clear that if the charge made against the respondent's account was fictitious and if there never was any intention of exercising the authority given by sub-reg (7), no part of the amount in question could be recovered by the respondent. But it is equally clear that if a Naval Board had authority to make the charge and took the appropriate steps to impose a liability to pay the amount in question upon the respondent, it is of no consequence that at some later stage they may forgive the whole or some part of the charge. If one may speculate it is probable that if no part of this sum is recovered by the respondent he will not be required to pay it. This will not, however, mean that he was never under a legal liability to pay it and there is no reason why, if the Naval Board, having authority to do so, sees fit to forego part of a lawful claim, the appellant should, in anticipation of that possibility, receive the benefit of it". 26 The appeal on this question therefore fails. 27 This appeal was brought as of right but by s 32(4)(c) of the Compensation Court Act, as amended by Act No 141 of 1997, the appeal lay by leave only unless it involved a claim or question relating to an amount of $20,000 or more. The award made by the Judge was for $20,177.14 and the appeal was therefore formally competent although on the appellant's arguments that were pressed the whole of this amount was not in issue. However once adjustments are made for the obvious errors relating to the various periods the worker was actually in hospital, the amount in issue falls below $20,000, and the Court should therefore treat the appeal as one which in substance required leave. In my opinion leave to appeal should be granted but only on terms that the appellant pay the respondent's costs of the appeal in any event. 28 In my opinion the following orders should be made: (1) Leave to appeal granted; (2) Appeal allowed in part; (3) Para 1(a) of the award is varied by substituting the following periods in lieu of that provided for, namely a total of 68 days from 15 April to 15 May, from 22 May to 15 June, and from 10 July to 21 July 1997 for a total award under this paragraph of $1,748. (4) Para 1(b) of the award is varied by substituting the following periods in lieu of that provided for, namely from 18 February 1998 to the date of the worker's admission to Blacktown Hospital and from the date of her discharge from that Hospital in February or March 1998 until 16 March 1999, and by substituting 14 hours a week in lieu of 20 hours a week, and adjusting the total awarded under this paragraph accordingly. (5) The parties to file short minutes with the Registrar of this Court quantifying the amount awarded by para 1(b) as varied by this Court on or before the 28 March 2000. In default the matter is remitted to the Compensation Court for the determination of this amount and the making of a formal award. (6) The appellant to pay the respondent's costs of the appeal. 29 BEAZLEY JA: I agree with Handley JA.

Our Lady of Loreto Nursing Home v Olsen

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