Garrett and Comcare (Compensation) - [2022] AATA 4379

Garrett and Comcare (Compensation) [2022] AATA 4379 (16 December 2022)
Division:GENERAL DIVISION
File Number(s): 2021/7056
Re:Stephen Garrett
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Member W Frost
Date:16 December 2022
Place:Canberra

The Tribunal varies the decision under review pursuant to subsection 43(1)(b) of the Administrative Appeals Tribunal Act 1975, as follows:
i.household services (for food preparation) and attendant care services are to be paid to Mrs Garrett under section 29A of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) at the rate of $57.58 per hour;
ii.attendant care services for transport assistance for Mr Garrett to attend medical appointments may be paid to Mrs Garrett when a support worker is not available, up to a maximum of 90 minutes per appointment, at the rate of $57.58 per hour; and
iii.Mr Garrett is entitled to compensation under subsection 16(6) of the SRC Act for three journeys to attend medical appointments exceeding 50 kilometres, being those on 13 April 2021, 24 August 2022 and 28 October 2022.

Any written submissions regarding the issue of costs in this proceeding pursuant to subsection 67(8) of the SRC Act may be given to the Tribunal by Comcare within 7 days of the date of this decision and by Mr Garrett within 21 days of this decision.
....................[SGD]........................................
Member W Frost
Catchwords
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – section 29A – compensation payable for catastrophic injury – household and attendant care services – gardening – whether the Applicant’s wife can be paid compensation – reasonable hourly rate of compensation - decision under review varied
Legislation
Administrative Appeals Tribunal Act 1975, ss 34D, 42C, 43
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 29A, 62, 67
Cases
Garrett and Comcare [2015] AATA 801
Haberfield v Department of Veterans Affairs (2002) 121 FCR 233
REASONS FOR DECISION
Member W Frost
16 December 2022
INTRODUCTION

The Applicant, Mr Stephen Garrett, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision of the Respondent, Comcare, regarding the amount of compensation payable for household and attendant care services obtained as a result of a catastrophic injury under section 29A of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
The Tribunal has considered all of the documents filed by the parties, including those filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with the parties’ written and verbal submissions in this proceeding.
For the reasons that follow, the Tribunal varies the decision under review.
ISSUES
The issues for the Tribunal to decide in this proceeding are:
(a)what is a reasonable hourly rate for the provision of household and attendant care services by Mrs Garrett to her husband?;
(b)does Mr Garrett reasonably require an additional two hours per week of household services for gardening?;
(c)can Mrs Garrett be compensated for providing gardening services?;
(d)can Mrs Garrett be compensated for her time assisting Mr Garrett to attend medical appointments?; and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Garrett and Comcare (Compensation)

Details

AGLC: Garrett and Comcare (Compensation) [2022] AATA 4379
Case: [2022] AATA 4379
Decision Date: 16 December 2022

CaseChat Overview and Summary

This matter concerned an application by Mr Garrett for workers' compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) following a stroke he suffered in 2010 while on a work-related trip. Comcare initially denied liability but later accepted that Mr Garrett's condition arose out of or in the course of his employment. Subsequent determinations by Comcare addressed compensation for household and attendant care services provided by Mr Garrett's wife, Mrs Garrett. The Administrative Appeals Tribunal was required to determine several issues, including the reasonable hourly rate for Mrs Garrett's services, the necessity of additional gardening hours, and compensation for Mrs Garrett's assistance with medical appointments.

The legal issues before the Tribunal included determining a reasonable hourly rate for household and attendant care services provided by Mrs Garrett, whether Mr Garrett reasonably required an additional two hours per week for gardening, and if Mrs Garrett could be compensated for gardening services and for her time assisting Mr Garrett to attend medical appointments. Furthermore, the Tribunal had to ascertain whether compensation was payable under section 16 or section 29A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for these services. Comcare contended that the hourly rate for Mrs Garrett should be $57.10, that Mr Garrett did not reasonably require additional gardening hours, and that Mrs Garrett should not be compensated for gardening. Comcare also argued that Mr Garrett did not require attendant care for the entire duration of medical appointments but proposed compensation for up to 90 minutes per appointment when a support worker was unavailable.

The Tribunal considered the reasonableness of the hourly rate for Mrs Garrett's services, noting that Mr Garrett sought compensation based on commercial rates charged by a care service provider, DUO. While Comcare initially proposed a lower average rate, it was found to have omitted certain higher weekday evening rates. However, the Tribunal determined that the commercial rates charged by DUO included overheads such as insurance and marketing, which were not costs borne by Mrs Garrett. Consequently, the Tribunal was not satisfied that these commercial rates, even when reduced by GST, were "reasonable in the circumstances" for payment to Mrs Garrett under section 29A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The Tribunal also found that, based on the evidence, Mr Garrett did not reasonably require additional gardening services, and it was not reasonable to compensate Mrs Garrett for providing them. Regarding medical appointments, the Tribunal determined that while attendant care was not required for the entire duration, Mrs Garrett could be compensated for up to 90 minutes per appointment when a support worker was unavailable. Compensation for travel to medical appointments was limited under subsection 16(7) of the Act, with Mr Garrett only entitled to compensation for one specific journey exceeding 50 kilometres.

Orders

Orders of the court

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Background

Background to the litigation

The issues for the Tribunal to decide in this proceeding are:(a)what is a reasonable hourly rate for the provision of household and attendant care services by Mrs Garrett to her husband?;(b)does Mr Garrett reasonably require an additional two hours per week of household services for gardening?;(c)can Mrs Garrett be compensated for providing gardening services?;(d)can Mrs Garrett be compensated for her time assisting Mr Garrett to attend medical appointments?; and(e)if so, is compensation payable under section 16 or 29A of the SRC Act? BACKGROUND On 16 June 2010, Mr Garrett made a claim to Comcare for workers’ compensation following a stroke he suffered on 16 May 2010 at a hotel in Sydney where he was staying for work.[1] At the time, Mr Garrett was employed in the Australian Public Service at the Executive Level 2 with the then Department of Education, Employment and Workplace Relations.[2] [1] Exhibit 1, pages 25-41. [2] Ibid. In July 2010, Comcare made a determination denying liability to pay compensation to Mr Garrett under section 14 of the SRC Act for his ‘intracerebral hemorrhage’.[3] Comcare was not satisfied that Mr Garrett’s condition arose out of, or in the course of, his employment in order to establish liability under the SRC Act.[4] [3] Ibid., pages 42-43. [4] Ibid., page 47. In August 2010, following Mr Garrett’s request for reconsideration, Comcare revoked its determination and found that Mr Garrett had, around the time of his stroke, travelled to Sydney to participate in ‘Austrade business for two weeks with approval from your employer, DEEWR’ and that this travel was ‘to undertake an activity at the direction of the Commonwealth’.[5] Therefore, Comcare accepted that Mr Garrett’s stroke ‘arose out of or in the course of Commonwealth employment’.[6] [5] Ibid., pages 46-48. [6] Ibid., page 48. Between May 2011 and March 2014, Comcare made a number of determinations under the SRC Act regarding the payment of compensation to Mr Garrett for household and attendant care services.[7] [7] Ibid., pages 61-66; 90-92; 100-101; 132-137; 150-151; 160-165; 184-185; 192-194; and 204-207. In August 2014, Comcare affirmed its determination of 22 May 2014, which denied Mr Garrett’s claim for compensation for household and attendant care services provided by his wife, Mrs Garrett, from November 2012 to April 2014.[8] [8] Ibid., pages 225-226 and 239-243. In September 2014, Comcare accepted liability to pay compensation to Mr Garrett for, among other things, attendant care services under the SRC Act up to and including 31 October 2014.[9][9] Ibid., pages 252-253. On 20 October 2014, Comcare informed Mr Garrett of its intention to undertake a reconsideration on its own motion under section 62 of the SRC Act regarding its decision from 2010 which accepted liability to pay compensation in respect of his stroke, or what it described as ‘cerebral embolism and visual field defects (bilateral)’.[10] [10] Ibid., pages 254-256.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Comcare contended that:[38](a)the decision under review by the Tribunal should be varied, such that $57.10 per hour, rather than $50 per hour as previously determined, is a reasonable rate of compensation for household and attendant care services to be paid to Mrs Garrett under section 29A of the SRC Act;(b)on the basis of the available evidence, Mr Garrett does not reasonably require an additional two hours per week of household services for gardening;(c)it is not reasonable to compensate Mrs Garrett for providing gardening services. The reason these services are compensable is because these are services it is not reasonably expected Mrs Garrett should have to perform;(d)on the basis of the available evidence, Mr Garrett does not reasonably require attendant care services for the entire time Mrs Garrett takes to attend medical appointments with him. However, when a support worker is not available, it is reasonable in the circumstances for Mrs Garrett to be compensated for up to 90 minutes for each appointment that she assists her husband to attend and this aspect of the decision under review should be varied accordingly; and(e)under subsection 16(7) of the SRC Act, compensation is not payable for travel to medical appointments unless the travel is to attend compensable medical appointments and is a distance greater than 50 kilometres. As such, the majority of journeys for which compensation has been claimed are not compensable. However, Mr Garrett is entitled to compensation under subsection 16(6) of the SRC Act for his attendance at one appointment on 13 April 2021, which journey was 52 kilometres. [38] Respondent’s Statement of Facts, Issues and Contentions dated 3 June 2022, page 8. CONSIDERATIONWhat is a reasonable hourly rate for the provision of household and attendant care services by Mrs Garrett? As set out above in these reasons, Mr Garrett sought compensation under the SRC Act for the provision by his wife of household and attendant care services in accordance with the hourly rates published by ‘DUO’, part of the ‘Life Without Barriers’ group, which charges clients for community care services across Australia.[39] That is, Mr Garrett sought compensation at a commercial hourly rate, less the applicable GST component. While Comcare contended that the average hourly rate from DUO’s published commercial fee for service rates on weekdays, weekends and public holidays was $71.87, it was in fact $121.71, because Comcare had not factored into its calculation, set out at Annexure A of its Statement of Facts, Issues and Contentions dated 3 June 2022, the weekday rate from 8pm to 12pm of $72.77 across 250 weeknights in 2021, totalling $18,192.50 for one hour each day over 250 weeknights.[40] [39] Exhibit 1, page 15. [40] See Respondent’s Statement of Facts, Issues and Contentions dated 3 June 2022, pages 8-9 and Annexure A. However, despite this omission, the rates charged to clients by DUO take into account the organisation’s commercial costs or ‘overheads’, such as insurance, training, leasing of premises, marketing and advertising. These are costs not borne by Mrs Garrett in the provision by her of household and attendant care services for her husband. In this regard, these hourly commercial rates are not paid directly to the employee performing the service; they receive a portion of these rates as salary. As a result, the Tribunal is not satisfied that the commercial rates published by DUO for care services and charged to clients, less GST, are ‘reasonable in the circumstances’ to be paid to Mrs Garrett, as required under section 29A of the SRC Act.