Dina Saad and Comcare
[2014] AATA 636
[2014] AATA 636
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5217, 2013/2729, 2014/0556, 2014/0557
Re
Dina Saad
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 3 September 2014 Place Canberra Matters 2013/2729 and 2012/5217 are affirmed and the reviewable decisions in Matters 2014/0556 and 2014/0557 are varied to allow Ms Saad to continue to receive four hours of household assistance up to and including 30 May 2015.
...........................[sgd].............................................
RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth employee – accepted conditions – extent of household services reasonably required as a result of accepted conditions.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), 29.
Cases
Secondary Materials
REASONS FOR DECISION
RM Creyke, Senior Member
Ms Saad, born 1980, has a Bachelor of Science and Math from the Australian National University and had been employed in the Australian Public Service since 2005. She worked as a statistician, work which was important to her.
In 2008 she suffered an injury to her wrist, which Comcare accepted as a ‘sprain of other specified sites of elbow and forearm (right)’ with a deemed date of injury of 24 September 2008. On 14 October 2013, Comcare further accepted that Ms Saad also suffers from compensable ‘chronic pain syndrome (right)’ and ‘adjustment reaction with anxious mood’.
Ms Saad has sought review from the Tribunal of four decisions.
Application 2013/2729 relates to a reconsideration decision dated 6 June 2013 that varied a determination of 14 February 2013 and accepted liability for household assistance of 4 hours a week and gardening assistance for 4 hours per month under section 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) until 26 April 2013.
Application 2012/5217 relates to a reconsideration decision dated 29 June 2012 which affirmed a decision dated 7 May 2012 that denied a claim for childcare services.
Matters 2014/0556 & 2014/0557 refer to applications for household assistance. On 15 November 2013, Comcare approved payment for household services for 4 hours each week up to and including 30 November 2013. On 23 December 2013 Comcare approved payment for household services of 4 hours per week up to and including 30 May 2014. Ms Saad applied for a review of this decision. On 31 January 2014, Comcare upheld the determinations of 15 November 2013 and 23 December 2013.
In summary, Ms Saad has sought review of the following decisions:
·childcare services (Matter 2012/5217, decided 29 June 2012);
·household assistance and gardening assistance (Matter 2013/2729, decided 6 June 2013); and
·household assistance (Matters 2014/0556 and 2014/0557, decided 31 January 2014).
The matters were heard in Canberra on 23 July 2014. At the hearing the parties agreed that the only issues to be pursued before the Tribunal related to household and gardening assistance.
Background
Ms Saad was an Australian Public Service Level 6 officer (APS 6) at the relevant time, and was employed by the Australian Institute of Health and Welfare. Ms Saad is left hand dominant. Ms Saad’s husband is a community pharmacist and his work limits the time he has to assist Ms Saad.
Initially in 2008 Ms Saad had right upper limb pain. She has also been diagnosed with bilateral chronic regional pain syndrome. After her initial injury, Ms Saad continued in employment in modified duties and hours and later in a full-time capacity until her daughter was born in 2009. Following maternity leave, she returned to work, on modified duties and hours. She continued to experience pain. In 2012, after the birth of her son in August 2011, her condition worsened and her upper limb pain became bilateral, but more pronounced on the right side.
After her son was born, Ms Saad again returned to work in April 2012. However, she was unable to cope and was certified totally incapacitated in July 2012. She has not subsequently returned to work.
Ms Saad formerly lived in Ngunnawal, ACT, a dwelling of three bedrooms, a small lounge, kitchen and dining room and one bathroom with what Ms Saad described as a ‘beautiful garden’. When she could no longer manage it, Ms Saad said the garden became ‘a dump’. For the period June to August 2013, she and her family were living with her parents.
In October 2013 she moved into a new home in Forde, ACT. This house has four bedrooms and a study, a large separate lounge and dining room, and an ensuite and a bathroom and a powder room. The dwelling is approximately 290 metres square, almost double the size of the previous home, and the block is 2090 squares. The garden which is being established is intended to be low maintenance.
The new home was designed with advice from the Independent Living Centre and has been built with kitchen and other aids such as light touch drawers and cupboards, and ceramic taps which are easy to manipulate, to cater for Ms Saad’s disabling conditions.
Ms Saad’s husband said he has, in the last twelve months, reduced his working hours in order to assist his wife. He still generally works 6 days a week. However, he now helps with the morning routine, including dropping the children at childcare, and if he is home in time, with the evening routine. He also takes the children swimming. On Sunday the couple take the children to church, then they may go shopping, and sometimes they take the children to the park. Ms Saad said she is anxious to take the children out by herself in case she cannot manage them. Ms Saad’s husband also waters garden pots.
From 21 June 2011, Ms Saad was in receipt of funded household assistance for 4 hours a week and of gardening assistance for 4 hours a month. On 13 September 2013, Ms Saad, requested 4-5 hours per week household cleaning, 4-5 hours per week laundry assistance, and 2-3 hours per week kitchen assistance. Dr Pradith Southi, Ms Saad’s general practitioner, recommended 9 hours per week for household assistance and 4 hours a month for gardening assistance.
Ms Saad’s two children are in full-time childcare during the week. Ms Saad and Mr Ibrahim only have their full daily care during the weekends. In a typical day, Ms Saad said she gets up about 7.00am to get the two children ready for childcare. Her husband drops off the children. By about 8.30am, when she is again alone, Ms Saad said she is exhausted. She tries to clean up after the morning tasks, but sometimes the pain prevents her doing so. She may have a bath and do a load of washing. She uses a dryer exclusively to dry the washing.
Ms Saad’s parents live in Canberra, although they are away for about half the year. When here, her father helps by taking her shopping and with school and childcare runs and her parents may look after the children once a week or once a fortnight.
Ms Carol Crocker, an occupational therapist, assessed Ms Saad on 8 February 2012. She noted that Ms Saad was then paying for both her children to attend full time childcare and had requested two hours per evening to assist with childcare activities. Ms Crocker recommended reimbursement of ‘a portion of the childcare costs for her son while on maternity leave’ to take into account time Ms Saad may have spent participating in a rehabilitation program.
Ms Crocker further assessed Ms Saad on 4 December 2014. After this assessment she recommended household services at 4 hours per week. In a new home, with a garden yet to be established, but to be low maintenance in style, gardening services were not recommended. At the hearing Ms Crocker further gave evidence that although it was reasonable for Ms Saad to have assistance with heavy household tasks, her recommendation was that Ms Saad needs to be active to improve her condition, otherwise she could become an invalid. As she said evidence based research was that a small amount of daily activity will gradually lead to improvements for the patient.
In a supplementary report dated 14 March 2014, Ms Crocker confirmed her earlier recommendation based on the size of the residence and the tasks to be completed.
In an Activities of Daily Living Assessment Report dated 5 April 2013, Ms Kim Nelson-Tyers, Senior Rehabilitation Consultant, recommended Ms Saad received reimbursement of child care services, although she understood that child care services ‘will not be funded by Comcare’. She did not observe Ms Saad with the children.
Dr Sumant Keval, consultant rheumatologist, in a report dated 10 July 2013 expressed the opinion that Ms Saad’s compensable condition did not prevent her from using standard household fixtures and fittings. His opinion was that Ms Saad’s reluctance to accept psychological and/or psychiatric therapy were the immediate barriers to her recovery.
In a supplementary report dated 5 November 2013, in response to the question whether Ms Saad needed the assistance recommended by Ms Nelson-Tyers, Dr Kevat said:
There is a strong possibility, given that Ms Saad’s failure to improve has primarily psychological reasons, that provision of assistance in the form of home care and childcare may in fact be inhibiting recovery. This factor may be particularly important as Ms Saad appears to be resisting engagement in psychological therapies which may assist in her recovery. On the other hand complete withdrawal of support may prove too difficult an adjustment. Hence, I would suggest that two hours of home assistance per week should be sufficient, and I do not consider that assistance should extend to provision of childcare. This level of assistance should be reviewed after six months.
Mr Gary Frontin, occupational therapist, has twice assessed Ms Saad. In his 22 December 2013 assessment, he recommended ten hours per week of household help with a review in twelve months’ time.
Dr Peter Wilkins, consultant occupational physician, in a report dated 10 September 2012, had recommended four hours per week of household assistance for at least a further six months. In a supplementary report dated 19 May 2014, after seeing the reports of Dr Kevat, Ms Crocker, and Mr Frontin, Dr Wilkins reaffirmed his recommendation that Ms Saad receive 4 hours a week of household assistance for the heavier household tasks.
His report noted:
It is apparent that Ms Saad believes she must be pain free before it will be possible for her to return to work, also that she must make maximum attempt to avoid provoking any pain in the conduct of her daily activities. There is absolutely no scientific evidence to support either of these propositions.
He had supported this assertion with references to relevant medical literature.
Dr Virginia Pascall, occupational physician, provided a report dated 11 November 2010 and a supplementary report dated 2 June 2014. In the later report Dr Pascall noted:
If [Ms Saad] had the degree of incapacity in her hands/arms that she states, she would be much more disabled than she is. However, I cannot exclude that she does not have a reason to experience some pain. [Dr Pascall earlier recommended an ultrasound investigation of Ms Saad’s elbows to decide whether she had epicondylitis.] What is evident is that she does not have a pathological reason to be experiencing pain to the extent that she says she is and certainly does not have pathology to warrant the degree of avoidance of activities that she has implemented. That is a significant symptom magnification problem.
She noted that although Ms Saad had seen psychologists in the past, they had focussed on her pain and how to deal with her pain. The result was that Ms Saad was ‘expending all her energies on either doing nothing or thinking of ways in which she can do even less, such as more housekeeping assistance’. She was also concerned about the level of analgesics (up to 8 Panadeine Forte daily) Ms Saad was taking and attributed Ms Saad’s lethargy and tiredness in part to this use of pain-killers.
Although Dr Pascall also expressed the opinion that acupuncture would not be of assistance to Ms Saad, the Tribunal notes that at the hearing, Ms Saad said she believed she was beginning to improve due to that form of therapy coupled with stretches and pacing herself. Ms Saad is anxious to get back to work.
On 31 January 2014, Comcare accepted liability for 4 hours of household assistance per week. The request for gardening assistance was to be reviewed when the garden was established. Dr Pascall’s description of the garden was that it was mulched with some plants at the front, there is to be artificial grass at the back, plants around the grassed area, a retaining wall, and no trees. Dr Pascall’s view was that 4 hours a month would be excessive for such a garden.
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 29 of that Act provides for compensation for household services and attendant care services ‘where, as a result of an injury to an employee, the employee obtains household services that [the person] reasonably requires’.
There is a cap on the amount of compensation for such services.
Issues
The consolidated issues in all the Matters before the Tribunal are summarised as: What is the extent of household services that Ms Saad reasonably requires as a result of her accepted injuries?
Consideration
Section 29 of the Act which relates to household services provides, as relevant:
29(1) … [W]here, as a result of an injury to an employee, the employee obtains household services that [the employee] reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services.
(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which [the employee] is able to provide those services after that date;
(b) the number of persons living with the employee as members of [the] household, their ages and their need for household services;
(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee’s family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(d) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
‘Household services’ are defined as ‘services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee’s household’.[1]
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 4(1) – definition of ‘household services’.
Ms Saad has accepted conditions affecting her upper limbs, and secondary conditions of chronic pain and anxiety. Despite various forms of treatment, she has continued to suffer pain.
Prior to her injury Ms Saad was employed but also managed the domestic tasks and the gardening. Her husband is neither a cook nor a gardener and his work occupies him at least 60 hours a week generally over six days a week.
Ms Saad’s claim is that she is unable to do the heavy household tasks such as cleaning toilets and bathrooms, mopping and vacuuming, and changing bedsheets, and has difficulty drying clothes. She rarely cooks, and the family mostly eat takeaway food and microwave meals. She also claims that she is now unable to garden and once the new garden is established will need gardening assistance also.
A contention advanced by Ms Saad is that as she was receiving four hours a week domestic assistance in her previous home and her current home is almost double the size of her previous home, her need for household services has commensurately increased. Her claim is supported by Dr Southi and by Mr Frontin.
Ms Saad’s household comprises herself, her husband, and their two children. The two children are in full-time day care during the week. Ms Saad’s parents live in Canberra and her father does provide her with some driving assistance, and her parents can mind the children once a week or fortnight. However, her parents are becoming increasingly elderly and in addition, they spend about half the year in their previous home country and are then unable to assist.
Comcare’s contention is that Ms Saad’s new residence, although larger, has been built with features which minimise the need for household assistance, for instance, by requiring only minimal dusting. These adaptive devices include ceramic taps, soft touch drawers and cupboards, wooden floors, and modified blinds. These significantly limit the amount of physical exertion of Ms Saad, particularly in her upper limbs. The Tribunal also notes that efforts have been made to provide a garden requiring minimalist effort. These sensible steps detract from Ms Saad’s argument that the larger house warrants more assistance.
Dr Southi supported the recommendation for 10 hours household assistance a week when he completed the Application for Household or Attendant Care and Child Care Services dated 23 December 2011. His reasons were ‘worsening of pain in R shoulder/arm & back… lack of therapy, and child’s demand’ In a medical certificate dated 19 April 2013, Dr Southi justified a similar recommendation in order ‘to prevent aggravation’ of Ms Saad’s injuries. That reason was repeated in medical certificates for the remainder of 2013.
The Tribunal understands that Dr Southi accepts Ms Saad’s view that her upper limb conditions have worsened. However, his recommendation that Ms Saad receive additional household assistance is not consistent with the medical reports which do not agree that her physical conditions have worsened (subject only to Dr Pascall’s suggestion that possible epicondylitis should be explored).
Ms Crocker pointed to evidence-based research that regular daily activity, rather than avoidance of activity, was necessary to aid recovery; Dr Wilkins confirmed that Ms Saad’s approach was to avoid activity in order to minimise the possibility of pain, an approach contrary to the scientific evidence; Dr Pascall denied any pathological basis for Ms Saad’s pain, and hence any reason to warrant the degree of avoidance she was manifesting, and Dr Kevat noted that her failure to improve appeared to be for primarily psychological, not physiological reasons, and that increasing assistance may inhibit recovery.
The theme from these medical experts is that more, not less, activity by Ms Saad would assist with her recovery. Dr Pascall noted also that Ms Saad’s decrease in physical tolerance/endurance was likely due to her reduction in fitness through inactivity, and that her increasing tiredness may be due to the level of analgesics she was taking.
Mr Frontin, in his report dated 22 December 2013, had also supported Ms Saad’s request for 10 hours a week household assistance. He did not explain how the figure of 10 hours a week was reached. However, his report was that Ms Saad had difficulty ‘bathing/dressing/manually handling her two year old child’, she was unable to do the heavy household tasks such as mopping, scrubbing all floors, dusting, bed making/linen change, normal meal preparation/serving/clear-up, and normal to heavy laundry load such as sheets and bath towels.
The Tribunal accepts that previously when Ms Saad was receiving 4 hours per week of household assistance prior to the move to the residence in Forde, Ms Saad only had one child, although that child would have been a toddler. Ms Saad now has two children. However, her evidence was that her daughter is now quite self-sufficient. So she still only has to manage one toddler. In addition her husband now helps with the bathing and dressing of her son in the mornings, thus often relieving Ms Saad of that task.
Ms Saad also previously had to manage the housework for her previous house and did so with four hours a week of Comcare assistance. Although the Tribunal concedes that in her current house there is a larger area of floor to be mopped and vacuumed, since not all the four bedrooms and a study are in constant use, those tasks would not be required for all rooms daily or even on a regular basis. The dusting, according to evidence to the Tribunal is minimal, and Ms Saad has managed to minimise the need for washing up and cooking by relying heavily on frozen and take-way meals and use of throwaway plates. Ms Saad’s husband will also assist with meal preparation provided he is home in sufficient time. Accordingly, it is hard to see why Mr Frontin believes Ms Saad has a need for two and half times more assistance.
In summary, Ms Saad’s husband, without substantial disruption to his employment, is assisting Ms Saad to a greater extent than hitherto. Ms Saad has moved into a new house specifically designed to minimise household tasks she previously found difficult including turning on taps and opening cupboards and drawers. The house has wooden floors throughout, and although the floors require vacuuming and mopping, that does not apply to all the rooms on a regular basis. Ms Saad’s evidence is that the larger house was to accommodate the children and have a spare room, as well as a study to cater for future needs. At present, it is unlikely that all the rooms are in constant use.
Ms Saad has intelligently adopted practices which limit the amount of time she needs to expend on cooking, washing up, and has taken advantage of other adaptive aids to assist her with her domestic tasks. Ms Saad’s husband takes her shopping which means she does not have to lift heavy loads, and he is the person who takes the children to swimming and helps her mind them in the park, thus assisting with or relieving Ms Saad of those tasks. Her husband is now assisting Ms Saad to a greater extent than prior to her son’s birth and the move to the new dwelling. So for these reasons the Tribunal is not satisfied that a substantial increase to the household assistance which has been requested is warranted.
Assistance ‘reasonably required’
The Tribunal must decide, however, what level of assistance is ‘reasonably required’. On 31 January 2014, Comcare accepted liability for 4 hours of household assistance per week. That assistance is to do the heavy household tasks which it is accepted are needed by Ms Saad. The Tribunal has not accepted Mr Frontin’s recommendation of ten hours a week given the failure of his report to indicate specifically why such a significant increase was required.
Dr Southi’s justification was that Ms Saad now had two children (although he only referred to one), that her pain had increased and she needed to avoid aggravating her condition. The Tribunal has noted that Ms Saad’s daughter, on the evidence, is now largely self-sufficient in terms of dressing and bathing, so those tasks are still confined to one child. The absence of any physiological explanation for any known cause for Ms Saad’s increased pain, the possibility that the cause is psychological not physical, and the probable explanation for Ms Saad’s constant fatigue and loss of strength have already been discussed. Ms Saad is currently seeing a psychologist, says she is pacing herself better and is finding acupuncture helpful. So she is taking steps to remedy some of these problems. The Tribunal notes Dr Southi’s surprise at her level of analgesic consumption and Dr Pascall’s suggestion that a reduction in that level of pain-killer medication is likely to lessen her tiredness and enable her to do more, thus building up her fitness, endurance and tolerance of pain.
Dr Wilkins, in the most recent medical report in May 2013 and having seen the other medical reports in this matter, concurred with a level of assistance of four hours a week. Dr Kevat in November 2013 recommended only two hours a week with a review after six months. That recommendation was not made after seeing Ms Saad’s new home, when her son was only 3 months old and needing less physical assistance, nor is it current. The Tribunal does not accept it.
Ms Crocker’s reports on 4 December 2013, and 14 March 2014, and in evidence before the Tribunal, recommended 4 hours week household assistance. Ms Crocker’s evidence at the hearing was not challenged. Dr Pascall said she could not recommend more cleaning assistance, and that some assistance would continue to be required, but more as a lifestyle, than a medical issue.
On balance, and taking into account the reports which it accepts of two occupational physicians, a psychiatrist, an occupational therapist who had assessed Ms Saad on more than one occasion, and noting the increased assistance of Ms Saad’s husband, the Tribunal finds that assistance is ‘reasonably required’ and that Ms Saad should continue to receive four hours a week of household assistance for the heavier tasks. The Tribunal therefore varies the reviewable decision in matters 2012/0556, 2014/0557 and determines that Ms Saad should continue to receive this level of assistance up to and including 30 May 2015.
The Tribunal notes too that once the garden is established, Ms Saad’s need for some assistance in gardening tasks should be reviewed. Ms Saad should advise Comcare when that need has arisen.
Accordingly, Matters 2013/2729 and 2012/5217 are affirmed and the reviewable decisions in Matters 2014/0556 and 2014/0557 are varied to allow Ms Saad to continue to receive four hours of household assistance up to and including 30 May 2015.
I certify that the preceding 58 (fifty- eight) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. .....................[sgd]...................................................
Associate: S. Wardell
3 September 2014
Date of hearing 23 July 2014 Counsel for the Applicant Jason Moffett Advocate for the Applicant David Lander Solicitors for the Applicant Lander & Co. Counsel for the Respondent Jane Godschalk Advocate for the Respondent Ella Howard Solicitors for the Respondent Australian Government Solicitor
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