Fairhall and Comcare (Compensation)

[2019] AATA 4364

Fairhall and Comcare (Compensation) [2019] AATA 4364 (28 October 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6874

Re:Lynne Frances Fairhall

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:                  Dr I Alexander, Senior Member

Date:  28 October 2019

Place:  Sydney

The reviewable decision is set aside and, in substitution, a decision is made that, pursuant to section 29(1) of the SRC Act, Comcare is liable to pay compensation for window cleaning as follows:

(i)in a period of 12 months, Comcare is liable to pay compensation for up to 3 window cleaning services to be determined by Ms Fairhall, as required; and

(ii)the maximum amount of payment for each window cleaning service is to be calculated on the basis of 6 hours at the prevailing maximum hourly rate.

...............................[sgd]...................................

Dr I Alexander, Senior Member

CATCHWORDS

COMPENSATION – workers compensation – household services applicant reasonably requires – number of hours of assistance reasonably required – window cleaning – frequency disputed – amount of compensation payable – decision set aside and substituted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 29

SECONDARY MATERIALS

Comcare, Scheme Guidance – Compensation for Household Services – subsection 29(1) of the SRC Act, 19 September 2018

Comcare, Household help rates, 2 August 2019

REASONS FOR DECISION

Dr I Alexander, Senior Member

28 October 2019

BACKGROUND

1. In February 2006, when Ms Fairhall, who is now 69 years old, was an employee with the Department of Parliamentary Services she suffered an injury to her right upper limb (supraspinatus (muscle) (tendon) strain (right) (tear)).

2. In May 2006, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) [the SRC Act], Comcare accepted liability for the injury.

3. In November 2008, Comcare accepted liability for a secondary condition, namely aggravation of cervical spondylosis without myelopathy.

4. In May 2009, Comcare accepted liability for two secondary conditions, namely aggravation of major depressive disorder recurrent episodes and chronic pain syndrome.

5. In October 2014, Ms Fairhall moved to a house on the NSW Central Coast.

6. In March 2015, an occupational therapist prepared a Comcare Standards for Household Services Assessment Report (ADL assessment) in which it was recommended that various household services should be provided, including regular window cleaning. It was recommended that 6 hours every 3 months be provided and reviewed every 12 months.

7. In November 2015, Ms Fairhall moved to another home in Lake Macquarie.  

8. In September 2016, following another ADL assessment, Comcare accepted liability to compensate for 6 hours of window cleaning every 3 months.

9. In May 2017, Comcare accepted liability to compensate for window cleaning for 6 hours every 3 months.

10. In June 2018, Ms Fairhall moved into a recently renovated house in Mirrabooka.

11. In an initial decision dated 12 October 2018, following a new ADL assessment in September 2018, Comcare accepted liability to compensate for window cleaning but reduced the amount of compensation from 6 to 3 hours every 3 months up to and including 12 September 2019.

12. In a reviewable decision dated 16 November 2018, a Senior Review Officer affirmed the decision of 12 October 2018 on the basis of a recommendation by Ms Haedrich, an occupational therapist, who was employed by Konekt and who had performed the ADL in September 2018.

13. Ms Fairhall, who attended the hearing in person, was self-represented and now seeks review of the reviewable decision.

    ISSUES

14. Section 29(1) of the SRC Act provides as follows:

    Subject to subsection (5), where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she 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 nor more than $200.[1] [Emphasis added.]

    [1] Respondent’s SFIC dated 16 August 2019 and amended SFIC dated 25 September 2019: Current adjusted rate – $481.77.

15. There is no dispute that Comcare continues to be liable to pay compensation for household services including window cleaning.

16. Ms Fairhall contends that, notwithstanding the fact that she had moved to a different house in 2018, the compensation payable for window cleaning should continue at the same rate as was recommended from 2015 to October 2018.

17. In the course of this matter, the position of Comcare has significantly changed.

18. In an amended Statement of Issues, Facts and Contentions (SFIC) dated 25 September 2019, the Respondent stated that it is now accepted that Ms Fairhall “reasonably requires 6 hours of window cleaning services every 6 months” and that “on the basis of the available evidence, the quote which represents the best value for money is the quote by Shazza’s Helpful Hands in the amount of $231.00 including GST”.

19. At the hearing, Counsel for the Respondent also submitted that it is now accepted that Comcare is liable to pay for 6 hours of window cleaning but that it is reasonable to reduce the frequency of the cleaning to every 6 months. It appears that Comcare has conceded that each window cleaning service requires a payment for at least 6 hours.

20. At the hearing, Ms Fairhall gave oral evidence, which was not challenged, that she had contacted Shazza’s Helpful Hands (Shazza) and was told that they provided domestic house cleaning services and were not a professional window cleaning provider. She added that no one from Shazza actually came to inspect her house or made any contact with her prior to submitting a quote. The quote was, in fact, based on information provided in an email sent by the Central Coast Local Area Manager from Konekt.

21. At the hearing, Counsel for the Respondent conceded, and the Tribunal agreed, that the quote from Shazza was not reliable and should be rejected. 

22. Therefore, the definitive issue in this matter is whether Comcare is liable to pay 6 hours of window cleaning every 3 or 6 months and what is the amount of payment that is reasonable in the circumstances, as described by Ms Fairhall.

    MS FAIRHALL’S EVIDENCE 

23. In a document sent to Comcare, dated 1 June 2019, Ms Fairhall stated, inter alia, as follows:

    When my property was assessed … upon my moving to the Central Coast in October 2014, I was asked to provide 3 quotes … The cheapest quote, from memory, was for over $300. I was advised by Comcare that the maximum they would pay was $270 … I negotiated with Clearwash window cleaning. They agreed to provide the service for $270, as it was a regular 3 monthly service, and on the condition that they were payed (sic) on the day of service. This meant that I had to pay them and claim the amount back from Comcare. [Emphasis added.]

    Over the following 4+ years, Clearwash has provided the window cleaning service every 3 months, as arranged. Their cost has slowly risen to $280 and Comcare has reimbursed me for that amount. When I moved from the Central Coast to Lake Macquarie … no further assessment was carried out and the services I receive continued … the homes were of similar size and style … no request was made by Comcare for re-assessment.

    I moved house again in June 2018 … to a home of similar size and style with the same number and type of windows. Comcare decided to re-assess. An occupational therapist, Sylvia Haedrich from Konekt, was sent. She assessed the situation and she tells me that she initially recommended that all services continue as they had been. She tells me that she was asked by Comcare if the window cleaning could be done in half the number of hours.

    I quote from Ms Haedrich’s correspondence to me, which was in email form -[2]

    Upon receiving the determination … I again sought and provided 3 quotes[3]… All persons quoting visited the property to assess the requirement. Again Clearwash’s quote for $280 was the lowest quote.

    [2] Email dated 21 February 2019; See below at para 29.

    [3] See below para 30.

24. In an email to Australian Government Solicitor (AGS) dated 15 September 2019, Ms Fairhall stated, inter alia, the following:

    The invoices I sent, and for which I was reimbursed, were for $280 each … I was reimbursed in full … I had only the two window cleaning services[4] during that period because I was frightened that Comcare wouldn’t reimburse me for their full cost, and I simply cannot afford the expense, as I live on the age pension only. The windows certainly needed more cleaning during that period but I couldn’t take the risk … It has been shown that Comcare requested a change to the original assessment from six hours to three. Ms Haedrich made that change based on the estimate from [email protected]. In doing that she disregarded the other estimate she had received at the same time, which stated 6-8 hours. Comcare then also totally disregarded the three quotes I had supplied, which by their cost, all indicated 6-8 hours were required … The frequency of the service had never been in question, because it was allowed quarterly, as Ms Haedrich had assessed.    

    [4] Services received on 14 December 2018 and 26 June 2019.

25. In her oral evidence at the hearing Ms Fairhall told the Tribunal that, since June 2018, she has lived in her current house with her adult son, who suffers from autism and learning difficulties. She also explained that there had been significant renovation before she had moved in.

26. Ms Fairhall explained that her current house, although similar to her previous house, is located in a “bushland” habitat close to sea water. The front of the house, which faces east, is only 70 metres from the waterline and is exposed to frequent “squalls” which deposit salty water on the house.

27. Ms Fairhall also explained that the house is surrounded by trees and is exposed to many birds that leave many droppings and frequently crash into the windows. Also, as there is no curbing and guttering on the local roads, a lot of dust can be deposited on the house when it is windy.

28. Ms Fairhall told the Tribunal that the house has 4 bedrooms, a study, bathrooms, a formal lounge, a kitchen/dining area and a separate family area. All the windows have fly screens, which need to be removed and also cleaned. There are also two windows in the ceiling which, for cleaning, require access to the roof by ladder.

    OTHER EVIDENCE

29. In an email, dated 21 February 2019, Ms Haedrich[5] informed Ms Fairhall that she had advised the AGS, inter alia, as follows:

    -initially Konekt advised to Comcare that window cleaning has to continue as assessed in previous assessment

    -Comcare got back asking whether less hours service is appropriate, Comcare suggested 3 hours

    -I consulted with my manager and reviewed the photos I took on the day of assessment and it was concluded that less hours is likely an option (–this was an estimate as Konekt is not a window cleaning provider) …   

    -when hours were questioned quotes were obtained …

    -I advised … that same range quote (5-6hrs) was received as well as lower quote (3hours),[6] hence it is not unexpected that this is the quote Ms Fairhall received

    -Konekt did state that no provider was asked to actually review the house/windows-it was an estimate

    -Konekt advised … that more reasonable would be to have 2 provider see the house and quote

    [5] At the pre-hearing directions hearing, the Tribunal had requested that Ms Haedrich be available to give evidence. On 25 September 2019, the Tribunal had been informed that the Respondent had been unsuccessful in making these arrangements.

    [6] Quote from Shazza dated 11 February 2019.

30. Quotes obtained by Ms Fairhall:

    ·20 November 2018 – Clear Wash:[7] Window Cleaning Inside and outside of windows including frames and fly screens - $280.01 (inc. GST $25.46)

    ·8 January 2019 – Clear Wash: 6 hours of window cleaning services at a cost of $280.00 including GST.[8]

    ·Benjamin Watling Window Cleaning: $280 (visited the house and assessed the requirement)

    ·Clearview Window Cleaning: looked at photos of your property online … Quote for Internal and External Window C leaning $330.

    ·2 April 2019 – Jims Window And Pressure Cleaning: Internal and External Window Cleaning. Including screen clean ($290); Basic Track Cleaning ($50); Total: $340 (inc. GST $30.91); 3-4 hours - 2x cleaners; 6-7 hours - 1x cleaner

    [7] Ms Fairhall’s service provider since 2015.

    [8] Respondent’s amended SFIC at para 15, subpara 14.1.

31. Additional quotes:

    ·10 February 2019 – email to Konekt – Propaclean: For an average sized single level house and the details supplied, I would estimate 5- 6 hours work.

    ·11 February 2019 – email to Konekt – Shazza: Based on your est of amounts of windows sliding doors I would imagine we would charge $126.50 includes GST. Using an hourly rate of $38.50per hour.[9]  

    ·26 March 2019 – quote to AGS – See Thru Cleaning: Residential window cleaning; Single level, 4 bedrooms, study, kitchen/dining, lounge, tracks included; Total: $ 395.00 (inc. GST $ 35.91)

    [9] Respondent’s amended SFIC at para 15, subpara 14.5: Quote revised to $231.00 (including GST) for 5-6 hours of service.

32. Ms Fairhall’s Clear Wash claims:

    ·26 April 2015

    ·27 July 2015 ~ 3 months (m)

    ·16 October 2015 ~ 3 m

    ·16 February 2016 ~ 4 m

    ·8 June 2016 ~ 4 m

    ·26 October 2016 ~ 4½ m

    ·6 April 2017 ~ 5½ m

    ·13 October 2017 ~ 6 m

    ·12 February 2018 ~ 4 m

    ·26 June 2018  – moved to Mirrabooka[10]

    ·1 September 2018 ~ 7 m[11]

    ·14 December 2018 ~ 3½ m

    ·26 June 2019 ~ 6½ m

    [10] Prior to June 2018 the house at Mirrabooka was being renovated.

    [11] Initial determination to reduce hours made on 12 October 2018.

    CONSIDERATION

33. In considering the time and costs that have been expended in this matter, the limited evidence and the relatively narrow issue involving an elderly unrepresented applicant, I believe it is appropriate to comment on the manner in which this matter has been managed.

34. The initial decision of 12 October 2018 and the reviewable decision of 16 November 2018, to reduce Ms Fairhall’s entitlement to compensation for window cleaning from 6 to 3 hours for each occasion of service, can best be described as questionable.

35. Ms Fairhall received a new quote from her usual service provider Clear Wash, for a single occasion of service, on 20 November 2018, that is, after both decisions had been made.

36. The decisions appear to have been based on the recommendation of Ms Haedrich, following the ADL assessment on 12 September 2018.

37. In the email sent by Ms Haedrich, dated 21 February 2019, she clearly indicated that the reduction in hours was suggested by someone at Comcare.

38. Ms Haedrich noted that Konekt “is not a window cleaning provider” and it is apparent that she was ambivalent about the decision to reduce the hours. Her ambivalence is not surprising, as the expertise of an occupational therapist would not usually include an ability to assess how many hours it would take to clean the windows of a house, as described by Ms Fairhall.

39. Furthermore, apart from the now rejected quote from Shazza, Ms Haedrich acknowledged that other quotes, which had been provided, were similar to the quote Ms Fairhall had received from her current provider in terms of hours of service required.

40. At this point it is, perhaps, useful to note that the current Comcare guidelines, updated 19 September 2018,[12] state that “Comcare recommends a trained professional, such as an Occupational Therapist or a Physiotherapist, conduct the assessment of an employee’s needs for household services”. I would interpret this to mean that the assessment be directed at whether the person needs any household services and what kind of services they need. To suggest that the assessment should extend to an estimate of the cost of a particular service, in terms of the number hours it takes to provide that service, I find questionable.

    [12] Comcare – Compensation for household services – Subsection 29(1) of the SRC Act.

41. Comcare’s policy is to pay for cleaning services in terms of a rate ‘per hour’, a policy which, in my view, is reasonable when the service provider operates and charges on an hourly basis.

42. However, the difficulty in this matter is that the quotes from the professional window cleaners appear to be based on an experienced overall assessment of what is required to perform the requested service, and not on how many hours it takes to provide that service. It is also clear that the number of hours required to provide a service will depend on whether there are one or two persons to provide that service and whether there are additional services needed such as removing and cleaning fly screens or accessing the roof.

43. It would appear that in this matter, the application of Comcare policy has resulted in a decision in which the entitlement to compensation is based on an artificial estimate of what Comcare is prepared to pay, rather than an evaluation of the most reasonable quote to provide the required service. It is somewhat ironic that, in the final analysis, the most reasonable quote appears to have been provided by Ms Fairhall’s current window cleaning provider in November 2018.

44. I note that at the current maximum rate of $49.87 per hour, the maximum amount of compensation payable for 6 hours of window cleaning is $299.22. This is more than the quote submitted by Ms Fairhall’s current service provider.

45. The final question, as to whether it is reasonable for Comcare to pay for window cleaning only every 6 months or whether payments should be made every 3 months, is in my view, somewhat problematic. There is no objective evidence to assist the Tribunal.

46. In support of the Respondent’s position, that it is reasonable for compensation payments to be made every 6 months, Counsel referred to general issues that have been considered in previous AAT decisions and to Ms Fairhall’s “own conduct” where, in the past, she had not actually “exhausted” her compensation entitlements every 3 months.

47. For present purposes, I am satisfied that the preferable approach is to focus on Ms Fairhall’s circumstances rather than to apply more general subjective principles.

48. Ms Fairhall presented as an honest and reasonable person who has been somewhat frustrated by an inflexible and prolonged administrative process. In her written and oral evidence, she provided a reasonable argument to support her contention that her windows need to be cleaned every 3 months.

49. However, on the available evidence, I am not persuaded that a strict three-monthly schedule for cleaning Ms Fairhall’s windows is required.

50. On perusal of Ms Fairhall’s past claims,[13] it is clear that, over the 4 year period, the schedule of window cleaning was randomly varied. This is not surprising when one considers possible domestic or other issues that may interfere with such a predetermined schedule.

    [13] See para 32 above.

51. On consideration of the available evidence, I am satisfied that the preferable approach is as follows:

    (i)in a period of 12 months, Ms Fairhall is entitled to be paid compensation for up to 3 window cleaning services to be determined by her, as required; and

    (ii)the maximum amount of payment for each window cleaning service is to be calculated on the basis of 6 hours at the prevailing cleaning - per hour rate[14] (maximum hourly rate).

    [14] Comcare’s Policy on Household help rates: Cleaning - per hour.

    DECISION

52. For reasons set out above, the reviewable decision is set aside and, in substitution, a decision is made that, pursuant to section 29(1) of the SRC Act, Comcare is liable to pay compensation for window cleaning as follows:

    (i)in a period of 12 months, Comcare is liable to pay compensation for up to 3 window cleaning services to be determined by Ms Fairhall, as required; and

    (ii)the maximum amount of payment for each window cleaning service is to be calculated on the basis of 6 hours at the prevailing maximum hourly rate.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

...........................[sgd]................................

Associate

Dated: 28 October 2019

Date of hearing:	30 September 2019
Applicant:	In person
Counsel for the Respondent:	Mr B Dean
Solicitors for the Respondent:	Australian Government Solicitor