Carver v Lake Machinery Repairs Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Carver v Lake Machinery Repairs Pty Ltd [2023] NSWPIC 258
APPLICANT:	Mark Steven Carver
RESPONDENT:	Lake Machinery Repairs Pty Ltd
Member:	Kerry Haddock
DATE OF DECISION:	5 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for provision of gratuitous domestic assistance to the applicant pursuant to section 60AA during period of hospitalisation; applicant was undergoing surgery as a result of the accepted injury; costs of the surgery, hospital care and accommodation for the applicant’s wife/carer were paid for by the respondent; respondent disputed that provision of assistance was reasonably necessary, as the applicant was being provided with care by hospital staff during the period of hospitalisation; respondent accepted liability for payment for domestic assistance on the day that the applicant was admitted to hospital and the day that he was discharged; consideration of Williams v Wollongong City Council; Nicholson v Nicholson and Anor and Quintano v B W Rose Pty Ltd & Anor; Held – It was not reasonably necessary for gratuitous domestic assistance to be provided during the period when the applicant was hospitalised, and services were being provided by hospital staff; award for the respondent.
determinations made:	1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mark Steven Carver (Mr Carver), was employed by the respondent, Lake Machinery Repairs Pty Ltd, as a mechanic.
On 6 January 2000, the applicant sustained injury to his back, neck, and right foot when he fell backwards from the top of a combine harvester on which he was working. He has sustained multiple secondary conditions.
On 21 November 2002, in proceedings in the Compensation Court of New South Wales, the respondent agreed to pay the applicant compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), in respect of 45% permanent impairment of his back; 30% loss of his left breast; 22.5% loss of use of his right leg at or above the knee; 15% loss of use of his left leg at or above the knee; and 5% severe bodily disfigurement. The respondent also agreed to pay the applicant the sum of $45,000 for pain and suffering, pursuant to s 67 of the 1987 Act.
In addition, the respondent agreed to pay expenses pursuant to s 60 of the 1987 Act of $61,776 in respect of personal care provided by Mrs Christine Carver for the period from 5 January 2000 to 5 January 2002; and $303.75 in respect of HIC Notice of Charge.
The respondent also agreed to pay, pursuant to s 60AA of the 1987 Act, the sum of $33,120 to Mrs Carver in respect of domestic assistance for 40 hours per week for the period from 6 January 2002 to date.
The applicant and the respondent agreed that from 22 November 2002, payments pursuant to s 60AA of the 1987 Act would be made on a continuing basis to Mrs Carver in the sum of $540 gross per week, based on the provision of 30 hours per week in respect of domestic assistance.
The applicant and respondent agreed that, from 2 December 2002, payments pursuant to s 60AA of the 1987 Act would be made to a professional care provider for up to 10 hours per week. The provider was to be determined and approved by the applicant’s general practitioner (GP), Dr Karaffa, or his “other GP”.
The respondent’s insurer, Allianz Australia Workers Compensation (NSW) Limited (Allianz), was to meet the reasonable costs of the professional care. It was to continue for a period of three months, after which it would be reviewed by Allianz, having regard to a report to be prepared by an occupational therapist and further report and certificates of the applicant’s GP/s.
The respondent was to pay, pursuant to s 60 of the 1987 Act, the costs of home modifications referred to in the report of Recovre dated 22 April 2002, and the costs of providing, repairing, or altering a pool hoist at the applicant’s home.
On 14 November 2003, the applicant and respondent entered into a complying agreement pursuant to s 66A of the 1987 Act, whereby the respondent agreed to pay the applicant, pursuant to s 66 of the Act, the sum of $47,000 in respect of 100% loss of sexual organs; and a further $5,000 for pain and suffering, pursuant to s 67 of the Act.
On 2 March 2006, the applicant and respondent entered into Consent Orders in the Workers Compensation Commission (WCC). The proceedings were discontinued, but it was noted that the parties agreed that the respondent would pay the applicant’s spouse for 35 hours per week of domestic assistance from 8 May 2004 to date and continuing, pursuant so s 60AA of the 1987 Act, on a voluntary basis. The amount to be paid was $751.30 per week. The respondent was to have credit for payments made.
On 13 October 2015, the parties entered into Consent Orders in the WCC. The proceedings were discontinued, but it was noted that the respondent agreed to pay the applicant the sum of $15,342.43 on a voluntary basis for medical expenses related to surgery undertaken on 19 December 2013.
On 13 September 2017, Allianz issued the applicant with a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Allianz disputed liability for gratuitous care provided by Ms Susan Simshauser, and for respite care, on the basis that the claim for gratuitous care did not meet the criteria of reasonably necessary treatment or service for the applicant’s injury, pursuant to s 60AA of the 1987 Act.
On 28 June 2018, Allianz issued the applicant with an optional review response, having reviewed its decision.
Allianz advised that it had accepted the applicant’s claim for gratuitous care for 25 hours per week and would pay for a further 10 hours of care per week, to be provided by an external support worker. It acknowledged the applicant’s need for 35 hours of domestic assistance per week.
The applicant’s claim was transferred from Allianz to Employers Mutual NSW Limited (EML) on 1 September 2018.
On 25 March 2022, EML issued the applicant with a notice pursuant to s 78 of the 1998 Act.
EML disputed liability for gratuitous assistance for the period from 3 March 2022 to 15 March 2022. During this period, the applicant had been admitted to hospital for surgery to his back; and EML maintained that he was receiving necessary care by hospital, medical, and nursing staff. It did not consider it would be reasonable to pay for both hospital inpatient care and gratuitous care simultaneously. Additional gratuitous care was not reasonably necessary. EML had approved Ms Sue Carver’s accommodation costs for this period, to allow her to be close to the hospital and to visit Mr Carver.
The applicant lodged an Application to Resolve a Dispute (the Application) on 16 February 2023.
The applicant claimed that on 6 January 2000, he was working on top of a combine harvester when he fell backwards and landed with his back arched across the back wheel of the header. He then fell onto a concrete floor, injuring his back, neck, and right foot, with multiple secondary conditions, including anxiety and depression; erectile and urinary dysfunction; injury to the throat; and prosthetic teeth.
The applicant claimed the sum of $3,024.15 for domestic assistance. The period during which the assistance was claimed to have been provided was not specified.
The respondent lodged its Reply on 13 March 2023.
By letter dated 19 May 2023, enclosing a list of payments, the solicitors for the respondent advised the solicitors for the applicant that EML had paid for gratuitous care provided on 3 March 2022 and 15 March 2022. The applicant’s solicitors were invited to withdraw the claim in respect of those dates.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the provision of gratuitous domestic assistance for the period from 4 March 2022 to 14 March 2022 was reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for conciliation/arbitration hearing on 26 May 2023, by the Teams platform. Mr Hammond of counsel, instructed by Mr Gatto, appeared for the applicant, who was present. Mr Grant of counsel, instructed by Ms Davies, appeared for the respondent. Mr Shum of EML was present during the conciliation period. He was excused from attending the hearing but was available to provide instructions if required.
The respondent submitted that any award in favour of the applicant should be limited to the period from 4 March 2022 to 14 March 2022, as compensation had been paid for services provided on 3 March 2022 and 15 March 2022.
The applicant initially submitted that an award in his favour should be made for the period from 3 March 2022 to 15 March 2022, with the respondent to have credit for payments made, but then agreed to the respondent’s proposal, noting that he could make further claim/s should that be necessary.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 22 May 2023 and attachments, filed by the respondent.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Mark Steven Carter

Mr Carter’s statement is dated 14 July 2015. It appears to have been made in support of the claim for surgery that was resolved by agreement on 13 October 2015.
The only evidence of any relevance to this claim is that the applicant was fit and healthy before the accident in January 2000; and as a consequence of his injuries, he was no longer able to work, and was totally reliant on his wife as a full time carer.

Evidence of Sue Carver

Ms Carver’s statement is dated 29 December 2022. She is the wife and carer of the applicant.
She provided personal care for the applicant while he was hospitalised in Royal North Shore Private Hospital (RNS) during the period from 3 March 2022 to 15 March 2022, for the purpose of having major back surgery. EML had accepted liability for the costs of the surgery on 14 February 2022.
She had made a claim for providing domestic assistance during this period pursuant to EML having accepted liability to fund up to 35 hours per week of gratuitous care. Apart from the period from 3 March 2022 to 15 March 2022, EML continued to pay for care at 35 hours per week.
The applicant was admitted to RNS on 3 March 2022. She assisted him to get ready that morning, took him to the hospital, assisted him through the admission process, and supported him while he waited to go into surgery. She came back to support him after the surgery had been completed.
After the surgery, she attended the hospital every day to provide care, assistance and support like she normally would.
The applicant spent the day after the surgery in the intensive care unit (ICU) and was discharged from intensive care at about 11.00am the next day. She obtained special permission to be with him in intensive care and at the hospital generally to give him support.
The applicant needed a great deal of assistance. As a result of the Covid pandemic and a shortage of nurses, the need for her to be there assisting him was even greater than had the hospital been fully staffed.
While the applicant was in hospital, she assisted him by ordering his meals, making sure he received them, and helping him eat them.
She dressed the applicant every day, helped him move in bed, and rolled him over. She changed the sheets and linen every day, and sometimes more often.
She attended to the applicant’s toileting needs at least five times a day. She washed him when necessary and helped him shower at least once a day. She took the applicant’s dirty clothing back to the motel and washed it every day. She kept the items the applicant had at the hospital tidy.
Once the applicant could ambulate, a few days after surgery, she helped him out of bed every hour and took him for walks of 5 to 10 minutes, approximately 10 times a day.
The applicant was having issues with his right arm and had difficulties using his right hand and arm. He also had various lines hooked to his left arm. This meant he had limited use of his arms, so she had to help feed him, give him drinks “and the like”.
She would generally be at the hospital from 6.00am to 11.00pm. She massaged the applicant’s back, legs, and arms, trying to assist circulation and helping the hospital staff. She helped him do the COPD (chronic obstructive pulmonary disease) breathing exercises he needed to do daily. If she had not been there to help, “he probably wouldn’t do them”.
On the day the applicant was discharged, she had to “pack up all his stuff”, assist with his discharge, and drive him home. This required multiple stops, and she had to provide him with medication, meals, drinks, and toilet breaks.
She had been the applicant’s carer for a number of years. Before the surgery, he “was in a very bad way both physically and psychologically.” He needed her support during his hospitalisation. If he had not had it, she doubted he would have been able to go through surgery.
While the applicant was hospitalised, she provided well in excess of five hours a day of assistance, “on top of the care” provided by the doctors, nurses, and hospital staff.
The Application attached copies of Ms Carver’s diary entries relevantly from 3 March 2022 to 13 March 2022. She recorded such activities as coffee; all meals; shower and personal care; “kept him cool and calm with wet washers and light massages”; (possibly “looked”) at menus every day; helping with eating; calming his distress; collecting clothes to wash; and washing and ironing clothes. The hours recorded were five hours each day.

SUBMISSIONS

The submissions have been recorded, and I will therefore summarise the main points.

Applicant

The applicant submitted that the respondent had disputed it was reasonably necessary to pay for both his hospital treatment and gratuitous care simultaneously. It did not dispute that the care had been provided.
The applicant referred to Ms Carver’s evidence and submitted that she provided a significant amount of assistance and care while he was in hospital. An additional factor to be considered was the hospital’s staff shortage.
The applicant submitted that the care provided fell within the definition of “domestic assistance” in s 60AA(6) of the 1987 Act. He had been unable to find any authority as to whether care outside the home fell within the definition.
The applicant submitted there was provision in his care plans for care outside his house, for example, transport. He was staying in the hospital, which was his domicile for a two week period.
In reply to the respondent, the applicant submitted that the authority cited by the respondent was of little assistance. It related to a different provision in a different Act. The term is better defined in the Civil Liability Act 2002 (the Civil Liability Act).
The applicant submitted that Ms Carver had set out the tasks she attended to. She was at the hospital from 6.00am to 11.00pm every day. The plan allowed for 35 hours per week. It was not of the “clock on/clock off” type. It provided for similar tasks to those she did while the applicant was in hospital. It did not say it was suspended while he was in hospital. What Ms Carver was doing was precisely the type of care she provided in accordance with the plan while he was at home.

Respondent

The respondent submitted that it was not liable to pay for gratuitous domestic assistance, because it was not reasonably necessary to provide it while the applicant was in hospital, where he was receiving care from hospital staff.
The respondent submitted that the applicant had been in receipt of domestic assistance since at least 2004. Once he went into hospital, the period of provision of assistance was suspended, and the need for assistance and the scope of what was required changed dramatically.
The respondent submitted that the insurer paid for the surgery and the hospital expenses, including the costs of nursing treatment and the like, which was precisely the sort of care for which the applicant was claiming.
The respondent referred to the State Insurance Regulatory Authority (SIRA) directive regarding claims for domestic assistance. This can include tasks such as household cleaning, laundry, lawn or garden care, and transport that is not covered as a medical, hospital, or rehabilitation expense. The respondent submitted that the washing done by Ms Carver was limited, as the hospital would provide for washing of sheets and bed linen.
The respondent submitted that, in considering whether the assistance was “reasonable” it was necessary to consider whether it would have been provided anyway, in a similar way that any spouse would provide assistance to the other in hospital.
The respondent submitted that some of the assistance provided by Ms Carver would have been provided by the hospital. This included, for example, meals, changing sheets and linen, and getting in and out of bed. The nature of the assistance provided from 2004 was quite different from the assistance required in hospital, from someone other than the hospital. It would be expected that each of the items referred to by Ms Carver would be provided by any spouse in any event.
The respondent had also not been able to find an authority directly on point. It referred to the decision of his Honour Judge Dicker of the District Court in Williams v Wollongong City Council.[1]
[1] [2020] NSWDC 564 (Williams).
The importance of the case was simply to demonstrate that there can be breaks in domestic assistance, which would apply in this case. In workers compensation, there can be breaks and interruptions to entitlements, for example, in claims for weekly benefits, and there has been an interruption in this case.
The respondent submitted that, if one goes into hospital, the surgeon does the surgery, and the hospital provides care. The applicant was in the ICU for 1.5 days, when it cannot possibly be said that Ms Carver was providing domestic assistance. Even if it were accepted that she had provided the care she has referred to in her statement, the assistance provided in hospital could not come anywhere near 35 hours per week. There was very little attempt in her statement to delineate how long she spent providing services.
The respondent submitted that it was not reasonably necessary that domestic assistance be provided during the period claimed, because the hospital was providing it; and the claim must fail.

SUMMARY

Section 60AA of the 1987 Act provides:

“60AA Compensation for domestic assistance

(1) If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if--
(a) a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and
(b) the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and

(c) the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2), and
(d) the assistance is provided in accordance with a care plan established by the insurer in accordance with the Workers Compensation Guidelines.

(2) Assistance is provided on a temporary basis if it is provided in accordance with each of the following requirements--
(a) it is provided for not more than 6 hours per week,
(b) it is provided during a period that is not longer than, or during periods that together are not longer than, 3 months,
(c) it is provided pursuant to the requirements of the relevant injury management plan.

(3)     Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or forgone employment as a result of providing the assistance.
(4)     Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance were such sum as may be applicable under section 61 (2) in respect of the assistance concerned.
(5)     The following requirements apply in respect of payments under this section--
(a) payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance, as the services are provided,
(b) payments are only to be made if those costs and the provision of the assistance is properly verified (and the Workers Compensation Guidelines may make provision for how the performance of those services is to be verified),
(c) payments for gratuitous domestic assistance are to be made to the provider of the assistance.

(6) In this section—
‘gratuitous domestic assistance’ means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay.”

It is not in dispute that, during the period in respect of which the applicant claims in the Application, he was an in-patient in hospital, where he underwent surgery, for which the respondent paid. For at least part of that period, he was in the ICU.
The respondent has accepted liability to pay for domestic assistance provided by Ms Carver on the day the applicant was admitted to hospital and on the day he was discharged.
The current Workers Compensation Guidelines (the Guidelines), made pursuant to s 376(1)(c) of the 1998 Act, and which commenced on 1 March 2021, provide little guidance in determining this matter.
The only reference in the Guidelines is to the establishment of a domestic assistance care plan, and the verification of gratuitous domestic assistance.
The SIRA website provides examples of the type of tasks that may be included in domestic assistance. They include household cleaning and laundry; lawn or garden care; and transport not covered as a medical, hospital or rehabilitation expense. That is not, of course, part of the legislation or even the Guidelines, but in my view, it provides a common sense indication of the services that may be provided to a worker in his or her own home, or “domestic” setting.
Ms Carver has given evidence that she washed the applicant’s clothing while he was in hospital. However, as the respondent submitted, that was a limited service, with the hospital being responsible for most of his laundry requirements.
The applicant submitted that the decision in Williams is of limited assistance because it was made under different legislation, and the term is better defined in the Civil Liability Act.
The Civil Liability Act defines “attendant care services” as meaning any of the following:
(a)    services of a domestic nature;
(b)    services relating to nursing, and
(c)    services that aim to alleviate the consequences of an injury.
“Gratuitous attendant care services” means attendant care services:
(a) that have been or are to be provided by another person to a claimant, and
(b) for which the claimant has not paid or is not liable to pay.
I accept that the decision in Williams was made pursuant to the Civil Liability Act and is therefore not directly on point. However, as the respondent submitted, it is authority for the fact that there may be breaks in the otherwise continuous provision of domestic assistance.
Decisions under the Civil Liability Act and the Motor Accidents Act 1988 (the Motor Accidents Act) also provide some guidance as to the approach taken by the courts in cases where the facts resembled those in this matter.
In Williams, Dicker DCJ said (at [303]-[304]):
“In my view, the preferred construction of the section in the light of the objectives of the section (inferred from the section especially s 15(2)) read with the Act as a whole requires attendant care services to be provided for at least six hours per week and for a period of at least six consecutive months where the plaintiff is available on his or her then current health to be provided such services. If the plaintiff cannot be provided such services because he or she is staying in hospital for a medical procedure for a limited period relating to the accident then the duration requirement may still be satisfied if such services are resumed and provided to the plaintiff when they leave hospital.
However, recognition must be made of the fact that attendant care services cannot be awarded for a period when the plaintiff is in hospital instead of being at home: see Nicholson v Nicholson (1994) 35 NSWLR 308.” (Emphasis added.)
Nicholson v Nicholson and Another (Nicholson) is a decision of the Court of Appeal, which included a Griffiths v Kerkemeyer[2] claim under the Motor Accidents Act.
[2] [1977] HCA 45; (1977) 139 CLR 161.
Section 72(1) of the Motor Accidents Act then provided:
“An award of damages shall not include compensation for the value of services of a domestic nature or services relating to nursing and attendance which have been or are to be provided to the person in whose favour the award is made by a member of the same household or family as the person, except in accordance with this section.”
At first instance, her Honour Justice Mathews held that no “services” within the meaning of s 72 of the Motor Accidents Act were provided to the appellant until June 1990. Her honour found that the appellant’s sister did not provide such services when she saw him every day while he was in hospital, from about 11.00am until 3.30pm or 4.00pm, when she “would massage his hands or rub cream, just comb his hair, general things like that, I would give [him] his lunch, try to make him as comfortable as possible”.
Kirby P, as his Honour then was, said:
“Before June 1990 the appellant was subject to full-time hospitalisation. The respondent should not have to compensate the appellant for the cost of the full hospitalisation as well as for gratuitous services provided in that time by his sister.
…
Section 72 itself refers explicitly to services of a domestic and nursing nature. The services performed by the appellant’s sister, which certainly helped improve his level of comfort, could not be classified as fulfilling a relevant ‘need’ in view of the fact that the appellant was already enjoying full-time hospitalisation. Although it may not be realistic to expect the nursing staff at all times to apply the creams to the appellant, the respondent already bears the burden of providing compensation for the costs of hospitalisation. I do not believe that it should be required to compensate the appellant’s sister as well for their minor activities. Her Honour was entitled to find that the appellant’s sister’s services did not represent services within Griffiths v Kerkemeyer.” (Emphasis added.)
Another decision under the Civil Liability Act is that of his Honour Justice Brereton in the matter of Quintano v B W Rose Pty Ltd & anor.[3]
[3] [2009] NSWSC 446 (Quintano).
His Honour heard evidence that, while the plaintiff was in hospital, where he remained for approximately 8.5 months, his father spent every night with him. He was relieved at times during the day by the plaintiff’s sister, grandmother, and friend.
The plaintiff’s father did “everything I could” for the plaintiff while he was in hospital. He assisted the nurses to move him, as “he is a big, big boy.” If he was not eating, his father would try to get him something else. His father also went to the gym with him.
His Honour said (at [121]):
“In my view, this evidence is insufficient to sustain a claim for damages for gratuitous care in respect of the period while Luke was in hospital. There is no doubt that his father’s presence during that time was important and supportive and reflects more than what many parents might appropriately have done. But that is not to say that it is compensable. Damages in respect of gratuitous services are recoverable only in respect of services of a domestic nature, services relating to nursing or services that aim to alleviate the consequences of an injury, for which there is a reasonable need that has arisen solely because of the injury…They are not recoverable for simply ‘being there’, or ‘being on-call’…Luke was in a hospital staffed with professional nursing and other staff and fully cared for by them.” (Emphasis added.)
Brereton J referred to the decision of the Court of Appeal in Marsland v Andjelic,[4] in which Kirby P and Meagher JA said (at 172):
“There is no doubt that the amount of care provided by the hospital staff will affect what amount or what value of compensable services can be successfully recovered. In another case, attendance by a parent at a hospital might be of insufficient duration or of a nature inappropriate to give rise to a successful claim…in this case it was found by the master that the appellant’s mother attended hospital for between six and eight hours a day after the appellant’s admission. From November 1987 she became closely and actively involved in his therapy. To an unspecified extent she was involved in his physical and speech therapy…the master found that, from the time of the accident, the appellant’s mother had devoted much of her time and effort to the welfare of her son.
Because of the particular facts of this case…we conclude…that the master erred in finding that past voluntary domestic care could not be compensated until six months after the date of the appellant’s discharge from hospital…the master’s finding was not open in light of the facts found by him.” (Emphasis added.)
[4] (1993) 31 NSWLR 162.
Brereton J went on to say (at [122]):
“While Luke’s father provided some assistance to nursing staff, I am unpersuaded that there was a relevant need for it, over and above the services provided by the hospital; there was no ‘subvention’ by which he provided services that would otherwise have been provided by the hospital and to that extent reduced the cost of hospital care, and he did not become involved in Luke’s therapy in the manner in which the plaintiff’s mother was in Marsland v Andjelic.”
I accept that in this case, as in the case of the plaintiff’s father in Quintano, Ms Carver’s presence was important to and supportive of the applicant. As was the case in Nicholson, she helped improve his level of comfort. However, as the respondent submitted, the support was of the type that would be expected of a spouse whose partner was hospitalised.
As was also the case in Nicholson, the respondent was already required to bear the costs of the applicant’s hospitalisation; and like Mr Quintano, he “was in a hospital staffed with professional nursing and other staff and fully cared for by them”. The respondent should not also be required to compensate the applicant for Ms Carver’s services during that period.
As the respondent submitted, there may be breaks and interruptions to the entitlement to compensation. The most obvious is the entitlement to payment of weekly benefits, but there may also be interruptions to the necessity for medical treatment or other benefits. The entitlement to the benefits may resume after the interruption. The necessity for Ms Carver to provide domestic assistance in accordance with the care plan/s resumed once the applicant was discharged from hospital.
I have determined that, during the period of his hospitalisation, the applicant was being provided with care by the hospital staff. It was therefore not reasonably necessary for Ms Carver to provide gratuitous domestic assistance during that period.
The order is set out in the Certificate of Determination.

[2023] NSWPIC 258

5 June 2023