Denhard and Comcare (Compensation)

Denhard and Comcare (Compensation) [2018] AATA 3372 (12 September 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2948
Re:Paul Denhard and Dale Denhard
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:12 September 2018
Place:Brisbane

I affirm the decision under review.
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Deputy President Dr P McDermott RFD
Catchwords
DEPENDENCY – WORKERS’ COMPENSATION – accepted worker’s compensation claim and funeral expenses for employee – accepted work related death – dependency claim by children of employee – wholly or partly dependent on employee at time of employee’s death – whether dependent for economic support
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 September 2018
INTRODUCTION

Dale and Paul Denhard (“the applicants”) are the sons of the late Victor Denhard who passed away on 30 April 2004.[1] I have to determine whether a dependency claim under section 17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) should succeed.
[1] T44, p.178.
On 12 October 2007, Dale applied for dependency.[2] On 3 March 2016, Paul applied for dependency.[3]
[2] T51.
[3] T66.
On 14 June 2008, the respondent accepted liability for the death of the late Victor Denhard pursuant to the operation of section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) and reimbursed the applicants’ for the funeral expenses under section 18 of the SRC Act. [4]
[4] T54.
On 9 October 2008 a determination was made to award the late Victor Denhard compensation for a 70 per cent whole person impairment. This determination outlined under section 55(4) of the SRC Act, that the survival action did not extend to compensation for non-economic loss under section 27 of the SRC Act.
On 15 March 2016, the respondent advised the applicants that compensation was payable to dependents that were dependent for economic support on an employee who died in compensable circumstances.[5]
[5] T69.
On 21 October 2016, the respondent declined the applicants’ claims for dependency benefits as it was not satisfied that sufficient evidence supporting whole or partial dependency on the late Victor Denhard had been provided.
On 27 February 2017, the applicants’ requested a reconsideration of the determination.[6]
[6] T72.
On 29 March 2017, a review officer for the respondent affirmed the decision under review on the grounds that there was no evidence to establish that the applicants’ incomes were so low that they were incapable of self-support and/or suffered financial losses as a result of their father’s passing.[7]
[7] T75.
LEGISLATION
The relevant legislation is outlined as follows. Section 4 of the SRC Act defines the following:
“dependent” – in relation to a deceased employee, means:
(a) the spouse, parent, step-parent, father-in-law, mother-in-law, grandparent, child, stepchild, grandchild, sibling or half-sibling of the employee; or
(b) a person in relation to whom the employee stood in the position of a parent or who stood in the position of a parent to the employee;
being a person who was wholly or partly dependent on the employee at the date of the employee’s death
“dependent” – means dependent for economic support
“prescribed child” – means:
(a) a person under 16; or
(b) a person who:
(i) is 16 or more but under 25;
(ii) is receiving full-time education at a school, college, university or other educational institution; and
(iii) is not ordinarily in employment or engaged in work on his or her own account.
Section 4(4) outlines that a person shall be taken to have been wholly or partly dependent on an employee at the date of the employee’s death if the person would have been so dependent but for an incapacity of the employee that resulted from an injury.
Section 4(5) provides that a person who, immediately before the date of an employee’s death, lived with the employee and was:
(a) the spouse of the employee; or
(b) a child of the employee, being a prescribed child;
shall be taken to be a person who was wholly dependent on the employee at that date.
Section 5(1)(a) defines employee as a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship; or a person who is employed by a licensed corporation. There is no dispute as to whether the late Victor Denhard was an employee within the meaning of the SRC Act.
EVIDENCE – PAUL DENHARD
Paul has a history of illness resulting in him being incapable of remunerative work.[8]
[8] T6, p.21.
On 14 December 2015, Paul entrusted Dale as his Enduring Power of Attorney.[9] It was deemed that Paul had an impaired capacity for decision-making regarding his personal/health matters[10] and Dale was made enduring power of attorney for Paul’s financial and personal/health matters.
[9] T64, p.229.
[10] T60, p.213.
Paul did not give evidence at the hearing.
Report of Dr Helen Siddle, consultant psychiatrist – Paul Denhard
On 11 November 2015, Dr Siddle provided a report regarding Paul. During the assessment Paul reported that he lived with Dale[11] and had done so for most of his life. Dale also reported (on Paul’s behalf) that:
Paul is independent in his activities of daily living…he currently does his own banking and has his own banking account…that he goes into the bank and pays his body corporate fees, his rates and his electricity fees… Paul remembers when these payments need to be made… Paul has managed to save $20,000 since he bought his unit whilst living on the pension. [12]
[11] T63, p.219.
[12] T63, p.222.
Dr Siddle concluded that Paul suffers from chronic schizophrenia, residual type (no active symptoms). His condition was suggestive of a cognitive impairment seen in someone suffering from a chronic mental illness and having a low level of education.[13]
[13] T63, p.224.
EVIDENCE – DALE DENHARD
Dale has a history of chronic depression, severe anxiety and social phobia.[14] Dale has not worked since leaving school (aged 15 years)[15] and has been in receipt of pension benefits on and off since 1997.[16] In his pension claim form dated 1 April 1997,[17] Dale outlined that he was currently unemployed living with his sister[18] paying $90 per week to his father for accommodation.[19]
[14] T24, p.93.
[15] T27, p.124.
[16] T65, p.239.
[17] T25.
[18] T25, p.103.
[19] T25, p.103.
Statement of Dale Denhard
On 10 March 2016, Dale provided a statement[20] in which he stated that at the time of their father’s death, the applicants were living in the family home and they lived there until 2011. Following this, the family home was sold and the applicants moved into a unit together and have been living there since.
[20] T67.
The statement outlines in relation to Paul that:[21]
[21] T67, p.259.
…immediately prior to our father’s passing, Paul was fully dependent on our father for many things including, but not limited to, financial transactions, housing and accommodation, transport, consumption of medication, doctor’s visits, hospital visits, dentist appointments and other such appointments, personal hygiene, showering, shaving, bathing and general grooming, washing and laundering of clothes, purchase of goods including clothing and other necessities, voting, general domestic assistance around the home, accompanying him to any entertainment venues and social occasions, payment of bills and mail, emotional support and company, supporting him with maintaining a healthy diet and lifestyle, dressing and undressing including application of compression stockings to assist with medical conditions and general care and assistance for medical conditions including incontinence and encopresis and generally looking after his daily wellbeing which includes his security and safety.
It was not uncommon for our father to look after Paul for most of each day and into the night almost every day of the week of the year. Our father looked after Paul virtually constantly and while it was with the assistance of our mother, it was our father who did the most of the caring. Our father spent countless hours looking after Paul and he provided support and assistance wherever he could.
… [Our father] also paid for virtually all of Paul’s expenses. Our father paid for Paul’s accommodation as Paul lived in the family home with no rent payable and he paid all of the bills of the home including all of the living costs such as electricity, gas, telephone and the council rates. Paul did not contribute to any expenses whatsoever to my knowledge.
… Paul did no domestic work.
… Our father drove Paul to and from his medical appointments virtually every time. Our father assisted Paul with consumption of medications on a daily basis and drove him anywhere he needed to go to seek or obtain the medical treatment he required for treatment of any of his disabilities and conditions.
… Our father also looked after … the meals … meal preparation was a major part of the day as well as cleaning up after meals and assisting with any additional dietary requirements.
… Our father was constantly looking after Paul’s personal hygiene…[he] spent many hours every week looking after Paul.
… Our father also purchased any necessities which were required to sustain Paul and this included groceries, clothes and other such necessities.
… The other things that our father did for Paul was that he took him anywhere he needed to go, not just to medical appointments but also to entertainment venues and social occasions. Our father spent many hours driving Paul to and from the cinemas, voting booths … and other such places.
Dale also outlined that their father looked after Paul until a few weeks before his death.[22]
[22] T67, p.261.
In relation to Dale, the statement provides that:
… I was heavily dependent on my father… I did not do much while I lived with my parents in the family home. I did not work and I did not have many activities to keep me busy during the day. I had a lot of side-effects from the medication that I was taking including lethargy and drowsiness and so I did not have much motivation to do anything at all during the day.
Given my setbacks, my father also looked after me for a significant period of time while I lived in the family home. My father took me to various medical appointments and provided me with general transport to and from various venues as required and he also provided me with financial support.
… I looked after my mother as much as I could while she suffered from cancer and this was a significantly challenging time for me.
… After my mother passed away from cancer, I continued to live at the family home with my father and Paul.
Report of Paul Elliott, psychologist
Mr Paul Elliott, psychologist provided a report dated 14 April 1997 about Dale. The report outlined that Dale had lived with his parents for most of his life and it was only when their “nagging” over his inactivity and unemployment overwhelmed him, that he lived with his sister (only 8 kilometres away).[23] Dale returned to the family home when his mother was diagnosed with terminal cancer and he nursed her until her death.[24] The report outlined that Dale now cared for his father who was in poor health.[25]
[23] T28, p.126.
[24] T28, p.126.
[25] T28, p.126.
The report also outlined that Dale said he does not overuse alcohol in recent years, and does not use any illicit drugs.[26]
[26] T28, p.126.
Report of Dr Helen Siddle, consultant psychiatrist – Dale Denhard
On 15 February 2016, Dr Siddle provided a report regarding Dale. Dale advised during this appointment that he lived with Paul in a studio apartment owned by Paul[27] and had lived with Paul for all of his life.[28] Dale reported he is Paul’s carer and:[29]
… he looks after their bills…he cooks the meals and does the shopping or directs Paul to do it. [Dale] buys or supervises Paul buying Paul’s clothes. [Dale] takes Paul to his general practitioner and for hospital appointments and he supervises Paul doing his own banking. [Dale] … cared for his brother Paul throughout his life however became his official carer in 2004 after their father died.
[27] T65, p.237.
[28] T65, p.238.
[29] T65, p.237.
Dale reported that he and Paul lived with their parents until their father died and when his mother was diagnosed with cancer in 1990, he helped care for her during the period of 1990 to 1995 as his father was old and was not able to drive.[30]
[30] T65, p.238.
Dr Siddle concluded that while Dale has a psychiatric history of anxiety, depression and social phobia, there was no evidence to suggest he is currently suffering from a mental illness or neurodegenerative disorder.[31]
[31] T65, p.242.
Bank Statements
There is evidence of a deposit to Dale from the late Victor Denhard on 13 May 1999 in the sum of $20,134.17.[32] Other bank statements[33] have also been provided by Dale.
OTHER EVIDENCE
[32] T76.
[33] T81.
Letter of Dr William Folent dated 5 February 2018
The letter of Dr Folent outlines that up until the late Victor Denhard’s passing, he supported the applicants’ financially and covered things like specialists and medications.
Discharge Planning Assessment
The late Victor Denhard completed a discharge planning assessment on 11 April 2004,[34] which happened to be just prior to his death. He completed the form stating that he was in receipt of a Centrelink pension, that he lived with 2 x sons; that Dale would take him home after being discharged, and that he did not have sole caring responsibilities at home for another person or pet.[35]
[34] T37, p.169.
[35] T37, p.169.
Income
The applicants’ are both in receipt of a pension and Dale also receives a carer’s allowance for Paul. There is documentary evidence to show that Paul’s pension included a payment for rent assistance[36] and that he contributed $100 per week for rent paid to his father;[37] which then later increased to $110 per week from 12 September 2003.[38]
[36] T82.
[37] T82, p.338-339.
[38] T82, p.337.
Further, as mentioned earlier, Dale completed his application form for the pension stating that he paid his father $90 per week for rent. There is no evidence before me to suggest that this arrangement ceased.
CONSIDERATION
I have to determine whether the applicants are considered dependents within the meaning of section 4 of the SRC Act. There is no issue that the applicants are each a “child” of the late Victor Denhard.[39] Having regard to paragraph (b) of the definition of “dependent” in section 4 of the SRC Act, I have to determine whether, at the date of the late Victor Denhard’s death (30 April 2004), they were wholly or partly dependent on their father for economic support.
[39] T3, p.17 and T4, p.18.
I have considered the applicants’ health and employment history. I accept that they both have a long standing history of illness and have been unable to work for an extensive period of time. I am also satisfied that the applicants lived together with their father at the date of their father’s passing.[40]
[40] T79.
I should indicate that there are some aspects of the applicants’ statements that cause me concern. There appears to be an inconsistency between statements made by Dale about his living arrangements. Dale advised Dr Siddle that he had lived with his parents until his father died but advised Mr Elliott that he had lived with his sister at one point in time when his parents nagging over his inactivity and unemployment overwhelmed him.[41] Dale also disclosed in his pension claim form dated 1 April 1997 that he was living with his sister.[42]
[41] T28, p.126.
[42] T25, p.103.
There also appears to be inconsistencies in the applicants’ reporting of their father’s health as while they claim they were heavily reliant on the support of their father, there are also references that suggest their father was of poor health from the 1990s onwards and potentially relied on their support. An example includes a reference made by Dale to Mr Elliott that he now cared for his father who was in “poor health”.[43] There is also a statement that the applicants’ father drove Dale and Paul around which does not accord with the medical evidence which indicates that their father from about 1990 onwards was “old and not able to drive”. [44] Further, just prior to the late Victor Denhard’s death in 2004, he completed a discharge form stating that Dale would take him home after being discharged and that he did not have sole caring responsibilities at home for another person or pet.[45]
[43] T28, p.126.
[44] T65, p.238.
[45] T37, p.169.
Paul did not give any evidence at hearing and before the Tribunal. I accept that he was not in a position to give evidence. Dale decided not to give evidence at the hearing which meant his statement could not be tested in cross-examination.
There is no cogent evidence before me that either applicant was wholly dependent on their father at the time of his death because each applicant was then in receipt of a pension. There is also no basis for any finding that either applicant was partly dependent on their father at the time of his death. There are no financial records to verify such a contention. The payment of $20,134.17 to Dale in 1999 has been relied upon but there is no evidence to explain why the deposit was made and what the funds were used for. The other bank statements[46] do not provide evidence of any financial support that was given to Dale by his father. There is no concrete example given of financial support at the time of death. There is some indication that Paul was getting assistance for the payment of rent to his father. If Dale had given evidence he could have been questioned on whether he was given rent assistance.
[46] T81.
For the sake of completeness, I should mention that there is no evidence for me to make a finding that either applicant was a “prescribed child” within the meaning of section 4(5) of the SRC Act. Both applicants were over 25 years of age when their father passed away.
DECISION
I affirm the decision under review.

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated:            12 September 2018
Date of Hearing:  27 July 2018
The Applicants:  In person
The Respondent’s representative:     Ms Carmen Basilicata
Counsel for the Respondent:             Mr Gim del Villar

[2018] AATA 3372

12 September 2018

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction