Datta v Universal Consultancy Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Datta v Universal Consultancy Services Pty Ltd [2022] NSWPIC 111
APPLICANT:	Mrinal Datta
RESPONDENT:	Universal Consultancy Services Pty Ltd
MEMBER:	Jane Peacock
DATE OF DECISION:	18 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for gratuitous domestic assistance; services being rendered in India; applicant sought that services be compensated at an hourly rate provided by the NSW Australian Bureau of Statistics (ABS) for Average Weekly Earnings (AWE) in New South Wales (NSW); the requirement is that the provider of gratuitous domestic assistance be paid a proper and reasonable amount for the services provided; a proper and reasonable amount for services provided in India cannot be determined by reference to AWE in NSW; Held- that a proper and reasonable amount in the circumstances of this case was determined by reference to the AWE in India; award for the applicant.
DETERMINATIONS MADE:	Award for the applicant for 19 hours gratuitous domestic assistance per week from 3 September 2019 to 17 February 2022 at the rate of $4.04 per hour equating to $76.75 per week for 19 hours and from 17 February 2022 on an ongoing basis at the rate of 76.75 per week, such payments to be made in accordance with the provisions of the Workers Compensation Act1987 and the Workers Compensation and Workplace Injury Management Act 1998.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application) filed by the applicant, Mr Mrinal Datta (Mr Datta) seeks an order for compensation for gratuitous domestic assistance.
The respondent is Universal Consultancy Services Pty Ltd (Universal). Universal was insured for the purposes of workers compensation.

ISSUES FOR DETERMINATION

There is no dispute that Mr Datta suffered a work injury on 3 February 2001.
There is no dispute that Mr Datta requires domestic assistance. This has already been determined by an arbitrator in prior proceedings in the Workers Compensation Commission wherein it was determined he requires 19 hours of domestic assistance per week.
The dispute arises because the 19 hours of domestic assistance are being provided on a gratuitous basis by Mr Datta’s wife and compensation is sought in respect of same. Mr Datta now resides in India with his wife where those services are being rendered.
Universal disputes that Mr Datta is entitled to an award in respect of gratuitous domestic assistance.
If found to be entitled to compensation for gratuitous domestic assistance, then Universal does not dispute that Mr Datta is entitled to compensation for 19 hours of gratuitous domestic assistance, that being the quantum of hours determined in the prior proceedings. Mr Datta does not seek more than the 19 hours previously found.
The rate at which the 19 hours should be compensated is in dispute.
Mr Datta seeks that the rate ordered be based upon the Australian Bureau of Statistics (ABS) fulltime average weekly earnings in New South Wales. On this basis Mr Datta seeks the following orders:
(a) 19 hours per week from 3 September 2019 to 17 February 2022 at the rate of $47.54 per hour equating to $903.26 per week for 19 hours, and
(b) from 17 February 2022 on an ongoing basis at the rate of $903.26 per week to be indexed as per the ABS fulltime average weekly earnings in New South Wales.
Universal seeks an award for the respondent in the first instance.
In the alternative, Universal seeks an order that Mr Datta receive compensation for domestic assistance for 19 hours at the rate of 56 cents per hour or $10.60 per week for 19 hours, that being the minimum hourly rate able to be earned in India by the applicant’s wife converted back to Australian dollars or if Universal is unsuccessful in those submissions would seek that it be at the rate of $4.04 per hour for 19 hours at $76.75 dollars per week being the average weekly earnings in India converted back to Australian dollars.
In terms of the figures that are nominated by each party Universal agrees that the $47.54 per hour rate equating to $903.26 per week is the correct rate for the average weekly earnings in Australia and the Mr Datta’s counsel conceded that the rates nominated by Universal are supported by the evidence.
There is dispute between the parties whether the order by another Member on 3 September 2019 which ordered 19 hours of domestic assistance would need to be revoked in these proceedings or otherwise amended.

PROCEDURE BEFORE THE COMMISSION

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 Personal Injury Commission (Commission) having been admitted by consent and were considered in making this determination:
(a) The Application and attached documents.
(b) The Reply and attached documents.

Oral evidence

Mr Datta did not seek leave to adduce oral evidence and counsel for Universal did not seek leave to cross-examine Mr Datta.

FINDINGS AND REASONS

There is no dispute that Mr Datta suffered a work injury on 3 February 2001. He suffered physical and psychiatric injuries which resulted in significant permanent impairment ((44% whole person impairment (WPI) in respect of the psychiatric injury and 27% WPI in respect of the physical injuries). He was in Australia on a work visa at the time of injury and subsequently returned to India in May 2002.
There is no dispute that Mr Datta requires domestic assistance. This has already been determined by Arbitrator Perry in prior proceedings (Mrinal Datta v Universal Consultancy services Pty Ltd [2019] NSWWCC 290) wherein it was determined he requires 19 hours of domestic assistance per week.
The dispute arises because the 19 hours of domestic assistance are being provided on a gratuitous basis by Mr Datta’s wife and compensation is sought in respect of same. Mr Datta resides in India with his wife where those services are being rendered.
Universal disputes that Mr Datta is entitled to an award in respect of gratuitous domestic assistance.
If found to be entitled to compensation for gratuitous domestic assistance, then Universal does not dispute that Mr Datta is entitled to compensation for 19 hours of gratuitous domestic assistance, that being the quantum of hours determined in the prior proceedings. Mr Datta does not seek more than the 19 hours previously found.
The rate at which the 19 hours should be compensated is in dispute.
Mr Datta seeks that the rate ordered be based upon the ABS fulltime average weekly earnings in New South Wales. On this basis Mr Datta seeks the following orders :
(a) 19 hours per week from 3 September 2019 to 17 February 2022 at the rate of $47.54 per hour equating to $903.26 per week for 19 hours, and
(b) from 17 February 2022 on an ongoing basis at the rate of $903.26 per week to be indexed as per the ABS fulltime average weekly earnings in New South Wales.
Universal seeks an award for the respondent in the first instance.
In the alternative, Universal seeks an order that Mr Datta receive compensation for domestic assistance for 19 hours at the rate of 56 cents per hour or $10.60 per week for 19 hours, that being the minimum hourly rate able to be earned in India by the applicant’s wife converted back to Australian dollars or if Universal is unsuccessful in those submissions would seek that it be at the rate of $4.04 per hour for 19 hours at 76.75 dollars per week being the average weekly earnings in India converted back to Australian dollars.
In terms of the figures that are nominated by each party Universal agrees that the - $47.54 per hour rate equating to $903.26 per week is the correct rate for the average weekly earnings in Australia and the Mr Datta’s counsel said that his concession is that the rates nominated by Universal are supported by the evidence.
There is dispute between the parties whether the order by another Member on 3 September 2019 which ordered 19 hours of domestic assistance would need to be revoked in these proceedings or otherwise amended.
The relevant legislation provides as follows:
The definition of medical or related treatment in section 59:
"medical or related treatment" includes—
(a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a chiropractor, an osteopath, a masseur, a remedial medical gymnast or a speech therapist,
(b) therapeutic treatment given by direction of a medical practitioner,
(c) (Repealed)
(d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles,
(e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the 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,
(f1) domestic assistance services,
(g) the modification of a worker’s home or vehicle directed by a medical practitioner having regard to the nature of the worker’s incapacity, and
(h)     treatment or other thing prescribed by the regulations as medical or related treatment,
but does not include ambulance service, hospital treatment or workplace rehabilitation service.
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.
61 Rates applicable for medical or related treatment
(cf former s 10 (4), (5A))
(1)     The amount for which an employer is liable in respect of the medical or related treatment of a worker is such amount as is reasonably appropriate to the treatment given, having regard to the reasonable necessity for the treatment.
(2)     The maximum amount for which an employer is liable for any particular medical or related treatment shall not exceed such sum (if any) as may be fixed by the Authority in respect of that treatment by order published in the Gazette.
(2A) An order under subsection (2) may provide for the maximum amount fixed in respect of any particular medical or related treatment to vary by reference to different factors of a specified kind (for example, a higher maximum amount could be fixed for a treatment when provided by a provider accredited by the Authority).
(3)     The maximum amount for which an employer is liable for medical or related treatment given to a worker in respect of the same injury (whether the treatment is given at different stages of the injury or not) is—
(a) $50,000, or
(b) where some greater amount has been fixed by the Authority by order published in the Gazette—that greater amount.
(4)     Subject to the regulations, a direction may be given that the employer of a worker is liable for an amount additional to that fixed by subsection (3).
(4A) If proceedings relating to the worker’s claim for compensation are before the Commission and those proceedings relate to, or include matters relating to, the provision of medical or related treatment for the worker, such a direction may be given by the Commission. If no such proceedings are before the Commission, such a direction may be given by the Authority on application made in respect of the worker from time to time.
(5)     The amount for which an employer is liable for the care of a worker as referred to in paragraph (f) of the definition of "medical or related treatment" in section 59 is (subject to any maximum amount under this section) the reasonable cost of providing that care having regard to the extent to which care might be expected to be provided by the worker’s spouse or other person residing with the worker.
(6)     The amount for which an employer is liable for the modification of a worker’s home or vehicle as referred to in paragraph (g) of the definition of "medical or related treatment" in section 59 is the reasonable cost of carrying out those modifications.
(7)     Except as otherwise provided by the regulations, the maximum amount under subsection (3) does not apply to any liability of an employer referred to in subsection (6).
(8)     Any amount for which an employer is liable under this Division in respect of medical or related treatment may be recovered from the employer by the person who gave the treatment.
(9)     If the maximum amount referred to in subsection (3) is, on or after the commencement of this subsection, amended either by an Act or an order of the Authority, the amount for which an employer is liable in respect of the medical or related treatment of a worker under this section is to be calculated by reference to the maximum amount applicable to the worker at the time when the worker became injured.
The SIRA Workers Compensation Guidelines Requirements for insurers, workers, employers and other stakeholders dated 1 March 2021 provides relevantly at paragraphs 4.4 and 4.5 that the “provider of gratuitous domestic assistance is to be paid a proper and reasonable amount for the services provided.” It further provides that the gratuitous domestic assistance must be properly verified. To this end, the provider of gratuitous domestic assistance “must submit a diary of what they have done before the insurer approves and pays compensation. The diary must be signed by both the provider and the worker (if the worker is able to do so). As a minimum, the diary must include the date, services provided and hours worked.”
Turning first to the submission by Universal that Mr Datta is not entitled to compensation for gratuitous domestic assistance because the requirement that it be properly verified has not been met and that accordingly there should be an award for the respondent.
In this matter Mr Datta has significant permanent impairment as a result of his injuries. That he requires domestic assistance has already been determined in prior proceedings. Mr Datta and his wife Ms Temur have provided statements of evidence. Diary entries are also in evidence. Counsel for Universal points out that it is curious that the diary entries all have a total of 19 hours. Given that the amount of domestic assistance has already been the subject of contested proceedings and determined to be 19 hours and given that both Mr Datta and his wife give evidence that more assistance than 19 hours is rendered by his wife Ms Temur to Mr Datta, I consider the limit of 19 hours in the diaries is easily understood.
When I have regard to the totality of the evidence before me, including that of Mr Datta, his wife and including the diary entries I am satisfied that Mr Datta’s wife Ms Temur is providing domestic assistance to him on a gratuitous basis for at least 19 hour per week. I regard the diary evidence and the statement evidence as properly verifying the gratuitous domestic assistance being provided to Mr Datta by his wife.
It has previously been determined that Mr Datta requires 19 hours of domestic assistance per week.
The rate at which he should receive compensation for gratuitous domestic assistance is in dispute.
The requirement under the law is that the rate be proper and reasonable.
Mr Datta contends that the rate should be a rate by reference to the ABS fulltime average weekly earnings in New South Wales. That is at a rate of $47.54 per hour or $903.26 per week.
The submission is made notwithstanding that the services are not being rendered in New South Wales but are being rendered in India.
In order for me to clarify what counsel submitted in support of such a proposition the following exchange took place with Mr Datta’s counsel:
MEMBER: Mr Stockley, to be clear, you say that the guidelines provide there must be a proper and reasonable amount for the service provided. You advocate that I order it at the New South Wales rate. Do you advocate that without – you don’t seem to have given me any reasoning that would support why I would order a New South Wales rate for services that are being rendered in India.
MR STOCKLEY: Thank you. I acknowledge that the statutory formula presents me with something of a challenge in providing much support for that proposition other than the fact it is – this is New South Wales legislation. I mean, by the same token Mr Datta is being compensated ... income at the rates that apply to a worker in New South Wales not to his probable earnings in India. So it’s not entirely inconsistent with the way the scheme operates when an injured is domiciled outside the jurisdiction and as I submitted earlier and perhaps rather faintly, certainly the average weekly earnings formula has for many years formed part of the – at least the rule of thumb for the calculation of an hourly rate for domestic services.
Now, I’ve already acknowledged that this particular statutory formula probably moves away from that to some extent because that terms no longer resides in the guideline but it doesn’t – the guideline doesn’t oust it or say that it should not be the average weekly earnings in New South Wales as it has been in the past but I think that’s as far as I can develop that argument, Member.

I am not satisfied that it would be proper and reasonable to order compensation at the rate for domestic assistance services performed in India by reference to the AWE in New South Wales. The services are not being performed in New South Wales. The mandate of the Guidelines is that the provider of domestic assistance be paid a proper and reasonable amount for the services provided. It is not proper and reasonable to pay an amount for services provided in India at a rate that would be applicable in New South Wales.
Counsel for Mr Datta submitted in the alternative that the compensation for gratuitous domestic assistance would be at the rate of $150 per week for 19 hours. Counsel for Mr Datta submitted as follows:
“Now, I just wanted to turn to the evidence attached to the Application and importantly, the statement of Mrs Tembur, the applicant’s wife which starts at page 5 and the important feature of that evidence that I wanted to direct your attention to appear on that page. You’ll see at paragraph 12 she says in June 2002 she stopped working at her previous roles to start working for Mr Datta following his workplace injury. Now, this is a paid position on the basis of this evidence. She worked on a fulltime basis as a verbal contract as a live-in carer. Paid the equivalent of $500 Australian per month in cash. It's increased by August 2015 to the equivalent of $1,100 in cash and in addition she was provided with housing and food as per of her role as a live-in carer.
That was before she got married to Mr Datta. Now, it is apparent that that rate of remuneration that she received was for many more hours than the 19 that have been certified as appropriate by Arbitrator Perry, as he then was on 3 September 2019 in earlier proceedings. The application before the Commission at that stage, as I recall, was for 32 hours. So it’s my submission that one could infer the $1,100 per month plus housing and food was remuneration for 32 hours a week or more perhaps of services.
Now, some of those services may not have been domestic assistance services within the meaning of the legislation, they have been personal care services or other matters that don’t necessarily attract an entitlement to compensation but if one is to adjust that figure down to a 19-hour quotient, in my submission, you get a figure of about $150 Australian per week for a 19-hour week.
Now, my submission is that I’m mindful of the prohibition on or the direction, the quantification of this compensation is not calculated by reference to the lost income or foregone employment but what Mrs Tembur’s statement does tell you is that what she was earning doing this sort of work up until the time she got married to Mr Datta and my submission is she was earning equal to $150 Australian a week for the 19 hours of the services that she provided that constituted domestic assistance and that is an alternative way if you were not persuaded that the sum of $903 and some cents per week was in all of the circumstances the appropriate figure and if you are not persuaded that fell within the terms of the guideline my submission is that is a principled, verifiable and appropriate way to assess – I’m just looking for the words again – the proper and reasonable amount for the services provided.
My submission is in the first instance you’d apply the New South Wales average weekly earning rates. If you were persuaded that the Commission needed to temper the level of compensation available by reference to the market for these services in India you’ve got direct evidence from Mrs Tembur as to what that market was and the sort of, you know, rate that she was paid for very services that she’s now providing, in my submission, is that alternative basis upon which an award can be made.”
Universal has put in evidence a document entitled “Guides to Minimum Wage in India in 2021 published by India Briefing from Dizan Shera and Associates”. It is on this basis that the figures of $10.60 per week for 19 hours is calculated as the minimum rate a person providing domestic assistance services would earn in India and the figure of $76.75 per week for 19 hours would represent AWE in India.
Despite having sought compensation based on the AWE in New South Wales the applicant put on no evidence about the AWE in India. Universal put on such evidence and counsel for Mr Datta conceded that there is evidence to support what Universal says the AWE is in India and the minimum hourly rate in India. It is not for me to go on a frolic of my own in this regard and I propose to rely on the evidence provided by Universal in this regard and about which counsel for Mr Datta has made a concession.
Having regard to all of the evidence before me including what represents the AWE in India, I take into account that the rate of $150 for 19 hours is approximately double the AWE in India for 19 hours. This also could not be regarded as a proper and reasonable amount for domestic assistance services provided in India.
Counsel for Universal submitted that a person providing domestic assistance services in India would earn no more than the minimum hourly rate of or $10.60 per week for 19 hours. Counsel for Universal himself pointed out that this rate is below the poverty line.
I agree that it would not be proper and reasonable to order compensation that is representative of an income that is below the poverty line.
In all the circumstances I find that the provider of gratuitous domestic assistance Ms Temur (Mr Datta’s wife) should be paid a proper and reasonable amount for the services provided and that a proper and reasonable amount is best determined by reference to the AWE in India (converted back to Australian dollars).
This calculation performed by the solicitor for Universal and forwarded to me by consent as an aide memoir represents an hourly rate of $4.04 or $76.75 for 19 hours per week.
Accordingly there will be an award for the applicant for 19 hours gratuitous domestic assistance per week from 3 September 2019 to 17 February 2022 at the rate of $4.04 per hour equating to $76.75 per week for 19 hours and from 17 February 2022 on an ongoing basis at the rate of $76.75 per week.
In accordance with the provisions of the Act this payment is to be made to the provider of the gratuitous domestic assistance and the requirements of the Act will continue to need to be met for this compensation to be paid on an ongoing basis. There is no need for me to vary the order previously made as the prior order did not provide for an amount.

[2022] NSWPIC 111

18 March 2022