GGJS and Comcare (Compensation)

[2016] AATA 400

GGJS and Comcare (Compensation) [2016] AATA 400 (17 June 2016)

Division	GENERAL DIVISION
File Number	2015/2055
Re	GGJS
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President Dr Christopher Kendall
Date	17 June 2016
Place	Perth

The decision under review is varied.

The Applicant is entitled to the costs of tree clearing services delivered during the week of 9 December 2014. 

The maximum amount to which the Applicant is entitled for the tree clearing services delivered in the week of 9 December 2014 is $442.40.

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

Deputy President Dr Christopher Kendall

CATCHWORDS

COMPENSATION – household services – amount of compensation available

LEGISLATION

Safety, Rehabilitation and Compensation Act, 1991 (Cth) - section 29

SECONDARY MATERIALS

2010 – 2014 Statutory Benefit Rates under the Safety, Rehabilitation and Compensation Act 1998

REASONS FOR DECISION

Deputy President Dr Christopher Kendall

17 June 2016

BACKGROUND

1. This matter requires the Tribunal to determine whether the Applicant is entitled to the full amount of household services for the maintenance/clearance of trees on his property (“tree services”).  The tree services were performed on 9 December 2014 at a cost of $1600.00.

2. A detailed overview of the facts relevant to this matter was provided by the Respondent in a Statement of Facts, Issues and Contentions dated 31 March 2016 at paragraphs 1 to 14.  Where relevant to the issues to be decided by this Tribunal, the information contained therein is provided below.

3. The Applicant was previously employed by Australia Air Express Pty Ltd. He injured his back on 24 October 1998. The Respondent has accepted liability for the condition “displacement of intervertebral disc – lumbar” resulting from that workplace injury.

4. The Applicant has made a number of applications for household assistance over the years. Prior to the decisions the subject of this application for review, the Respondent made various determinations in relation to household assistance, including the following:

   a)On March 8 2000, the Respondent approved reimbursement for home help services for 2 hours per week until 15 May 2000 (T25 at 43);

   b)On 9 April 2001, the Respondent accepted liability for household help at 2 hours per week and gardening assistance at 2 hours per fortnight until 13 July 2001 (T32 at 54);

   c)On 16 June 2003, the Respondent approved payment of household services until 31 January 2004 for one hour gardening assistance every 3 weeks during spring/summer; one hour gardening assistance every 5 weeks during autumn/winter; and, twice yearly gardening assistance to clear bushland (T48 at 86).

   d)On 26 February 2004, the Respondent approved compensation for payment of home help services at 2 hours per week and gardening at 2 hours per fortnight from 1 March 2004 to 28 February 2005 (T57 at 101).

   e)On 25 February 2008, the Respondent approved household services for 2 hours per week or 2.5 hours per fortnight for cleaning and 2 hours per fortnight for gardening until 28 February 2009 (T83 at 139).

   f)On 2 June 2011, the Respondent accepted liability until 31 August 2011 for payment of 2 hours per fortnight for gardening services and window cleaning for 4 hours (once off) (T108 at 185).

   g)On 2 September 2011, the Respondent accepted liability until 30 November 2011 for payment for gardening services for 2 hours per fortnight and window cleaning for 4 hours (once off) (T112 at 196).

   h)On 22 November 2011, the Respondent accepted liability until 31 March 2012 for payment for gardening services for 2 hours per fortnight and window cleaning for 4 hours (once off) (T116 at 207).

   i)On 22 March 2012, the Respondent accepted liability until 30 June 2012 for payment for gardening services for 2 hours per fortnight and window cleaning for 4 hours (once off) (T120 at 215).

   j)On 27 August 2012, the Respondent accepted liability until 31 January 2013 for payment for gardening services for 2 hours per fortnight and window cleaning for 4 hours (once off).

5. On or about 12 December 2012, the Applicant lodged an application for household services in which he sought (T126 at 227):

   a)Window cleaning of 4-5 hours twice per year;

   b)Gardening and lawns for 2-4 hours per fortnight;

   c)Tree services for 6-8 hours once per year; and

   d)Housecleaning for 4-6 hours on an ongoing basis.

6. On 7 October 2013, the Respondent accepted liability for household and gardening services until 15 October 2015 for:

   a)4-5 hours window cleaning twice per year;

   b)2 hours for gardening and lawns once every 3 weeks in spring/summer and once every 5 weeks in autumn/winter;

   c)6-8 hours for tree services once per year; and

   d)2-3 hours for house cleaning once per week (T134 at 247).

7. These figures were based on an assessment provided by occupational therapist Stephen Thomas dated 25 March 2013 (T130 at 235). Relevantly, Mr Thomas’s report noted as follows:

   j)Recommended assistive equipment to maximise independence. Assistive or adaptive techniques discussed with the injured worker.

Name of equipment/aid	Strategy for independence	Impact on need for services	Supplier of this equipment/aid
Gardening activities – trees, gardens, lawns	Use self-pacing to complete light tasks that are within medical restrictions	Services still required to undertake heavier requirements	New contractor to be identified, pending Comcare support (unable to coordinate under current arrangements)
Cleaning – house and windows	Use self-pacing to complete light tasks that are within medical restrictions	Services still required to undertake heavier requirements	New contractor to be identified, pending Comcare support (unable to coordinate under current arrangements)

k)Please state the household services that are recommended, including household and gardening services in relation to the compensable condition.

Task/Aid/Appliance	Comments including rationale for recommendation
Window cleaning	Volume of work and conditions (particularly heights) make independent cleaning difficult and unsafe given medical restrictions.
Gardening/lawns	Some additional support recommended due to size of property 2200m2), nature of vegetation and gradient of the property – unkempt garden conditions could compromise safe mobilising around property and fire safety; gradient increases, physical demands of tasks.
Trees	Shire requirement to maintain properties for fire hazard reduction purposes. Property backs onto National Park land. Bulk of work too physical and beyond medical restrictions.
House cleaning	Large house; wife also limited in physical capacity; cleaning tasks are particularly back intensive; no assistance from boarder.

1. A letter sent to the Applicant on 7 October 2013 in relation to this determination included the following explanation (T134 at 247):

   The maximum hourly rate payable for each of these services is $45.00. The combined maximum weekly rate payable for these services is $430.77.

   There is no maximum hourly rate for attendant care services. However, the maximum weekly rate payable is $430.77.

   The maximum hourly rates for household help services are not specified by the SRC Act, which means your CSO (Claims Services Officer) can approve any amount as long as it can be considered ‘reasonable’. To help CSO’s decide what is reasonable, we annually publish household help rates, which are available at and entitlements/medical expenses/medical service rates. If you need to claim above these rates, please speak to your CSO.

   However, there is no discretion associated with the maximum weekly amounts payable for household help services, as they are statutory rates fixed by the legislation. These rates are indexed annually in line with the Consumer Price Index (CPI).

2. On or about 9 December 2014, the Applicant incurred expenses of $1600 from Arlington Trees for “pruning and removal of trees for compliance with shire fire regulations” (T148 at 270). The tree clearance occurred on the Applicant’s residential property – a large property on the outskirts of Perth covering 2200 sqm.  As required, the Applicant submitted a claim for reimbursement to the Respondent for the costs of the tree services.

3. On 19 January 2015, the Respondent partially reimbursed the Applicant in relation to the tree services. The amount reimbursed was $442.40.  That amount was justified as follows (T149 at 272):  

   Under the Safety Rehabilitation and Compensation Act 1988 (SRC Act), Comcare will reimburse an amount it determines appropriate for treatment that was reasonable for an injured worker to obtain.

   Where an item is partially reimbursed, it means that the amount claimed for that treatment or benefit exceeds what Comcare has determined as appropriate. The limits are established by considering the reasonable cost of that treatment or benefit in conjunction with limits set by comparable insurance jurisdictions and professional associations

4. By letter dated 27 January 2015, the Applicant requested an internal review of the decision of 19 January 2015 to partially reimburse him in respect of tree services to the amount of $442.50 (T150 at 274). The Applicant requested the full $1600.00 and explained his concerns as follows:

   I am writing to request a reconsideration of a determination made on 19th January 2015 for pruning and removal of trees.

   After recent bushfires in the Perth Hills the department of Fire and Emergency Services has issued a series of guidelines for Hills residents to reduce the risk of fire to their homes.

   One of the main guidelines is to reduce and remove all and any material which is flammable for an area of 20metres around the home and outbuildings.

   This also includes maintaining a two metre gap between the house and tree branches and any overhanging branches.

   These guidelines are also included in our Household Insurance (APIA) guidelines for making your home Bushfire ready.

   As we live in the Hills and have a very densely treed block we needed to undertake quite a lot of pruning of trees which were overhanging our house to comply with the guidelines.

   This was not a job that could not be done at an hourly rate as tree loppers do not quote hourly rates only the full amount for the work required. We could not ask them to come four times to do the required work and it needed to be done before the fire season arrived, i.e. December.

   As we have not claimed for any work undertaken for at least the last two years I feel we should be reimbursed the full amount for tree lopping as this is a legitimate expense given the fire risk we face and we are not able to undertake this work ourselves. 

   This is a requirement of DFES and our insurance company and failure to comply may result in denial of an insurance claim if we were subject to a fire.

5. By letter dated 27 February 2015, the Applicant also requested internal review of his household services entitlements more generally (T156 at 291).  He stated:

   We are currently using a cleaner for 3 hours on a fortnightly basis and find that this is adequate for the household at the moment. However we were employing a gardener for 4 hours a fortnight but have not been reimbursed the full amounts for this as current entitlement only allows us 3 hours every 3 weeks in summer and even less in winter. There is a lot more upkeep in the garden than just mowing the lawn and the current entitlement allows for little more than lawn mowing. Consequently I have had to terminate the gardener as cannot afford all of the out of pocket expenses.

   As we are only using the house cleaning service once a fortnight instead of once a week so I would like to request an increase in hours for the gardener to 4 hours once a fortnight at $30.00 per hour to a total of $120.00. This still keeps our costs to under the allowable limit of $430.77 per week.

   We live on a large block and it has become increasingly difficult for us to maintain the garden without exacerbating both my wife's and my own back injuries.

   In November 2014 I applied for 4 hours per fortnight for gardening work but this has not been acknowledged so feel the work claimed for gardening over the last few months should be reimbursed in full.

6. On 1 April 2015, upon reconsideration, a delegate of the Respondent revoked the decision to partially reimburse the Applicant for tree services in the amount of $442.50. In essence, the delegate found that the need for tree removal was a shire requirement.  The delegate explained further that this was not a task that the Applicant would have performed independently prior to his injury.

7. The delegate (T160 at 300) also varied the decision in relation to the Applicant’s accepted household services generally to accept liability for:

   a)2 hours per week of household assistance;

   b)4 hours window cleaning twice per year; and

   c)2 hours of gardening per fortnight. 

8. No provision was made for tree services.  Relevantly, in relation to that issue, the delegate stated:

   … the reimbursement for tree removal is a requirement of your shire and not related to the accepted compensable condition. Therefore the tree removal services would be required irrespective of your injury. I revoke the determination to provide assistance for tree removal and reduce your household services in line with your previous services, which are 2 hours per week of household assistance, four hours window cleaning twice per year and 2 hours per fortnight for gardening.

9. By application dated 28 April 2015 and lodged on 30 April 2015, the Applicant sought review by this Tribunal of the reconsideration decision of 1 April 2015. Relevantly, the Applicant stated (T1 at 1-2):    

   In her determination [the delegate] has varied the determination for household assistance to 2 hours per week for household assistance, four hours for window cleaning twice per year and 2 hours per fortnight for gardening.

   She has also queried the pruning of trees due to fire risk regulations and has indicated she will seek recovery of payment made for this service.

   My reasons for appealing these determinations are as follows.

   The recommendations made by the Activity of Daily Living Assessment in March 2013 include;

   A notation that assistance is needed with the garden and lawns due to size of property, and that vegetation and gradient of property are such that condition of the garden could compromise safely and fire safety.

   Also noted was that the Shire requests that the property be maintained to reduce fire risk as the property backs onto a national park, and that this work is too large and beyond the medical restrictions placed on me.

   Home help was also recommended due to it being a large home and my wife being unable to undertake entire tasks due to own health issues.

   From this assessment it was recommended household services be given:

   Window cleaning 4-5 hours twice per year

   Gardens/lawns 2 hours varied depending on seasons

   Trees, 6-8 hours once per year

   House cleaning 2-3 hours per week

   [The delegate] has re-determined household services to:

   Window cleaning 4 hours twice per year

   Gardening 2 hours per fortnight including any tree lopping

   Housecleaning 2 hours per fortnight.

   No future allowance for tree maintenance and reimbursement to Comcare for previous tree maintenance.

   I feel this is unsatisfactory given the recommendations made in the API assessment which recognized the need for the garden to be maintained adequately due to shire requirements and fire safety issues which have always been a consideration. Prior to my injury I would have undertaken most of this work myself but am no longer able to do so. We therefor engaged the services of professional tree loppers to assist in this work fully expecting we would be covered by Comcare. The issue we had with claiming this was that Tree Loppers do not charge at an hourly rate rather than a set price, and subsequently we were only reimbursed a limited amount which we appealed, only to be told we should not have been reimbursed anything and for which they will seek repayment.

   My wife undertakes a great deal of the gardening but is finding it increasingly difficult to do so due to her own health issues and needs more assistance than is currently available.

   The hours for household assistance have been reduced from 3 hours currently to only 2 hours per fortnight. There is no way the house can be adequately cleaned in only 2 hours per fortnight. Our cleaner struggles to do what is required currently due to the size of the home so it means we would have to subsidize this to allow extra time for her which puts financial pressure on us.

   Window cleaning has been reduced to 4 hours twice a year and the same argument applies as to the size of the house. Putting stringent time restraints on window cleaners could compromise safety and efficiency.

   I also feel it is unfair to change a determination retrospectively on the allowance of tree maintenance and then expect payment to be repaid to Comcare. My wife doesn't work and the expenditure on out of pocket expenses for household services becomes a burden to us. Also the time taken for reimbursement from Comcare is often quite extensive.

   I am pleased that the gardening rate has been granted at a fortnightly interval but still feel 2 hours per fortnight is inadequate given the size of the garden and my wife's and my own limitations.

   We wish to stay in our current home for as long as possible and the maintenance of the house and garden is a major issue for us. ...

   ISSUES

10. At the hearing of this matter, the issues to be determined were substantially narrowed by agreement between the parties. 

11. It was not disputed that for the purposes of this hearing the extent of the Applicant’s entitlements for household services is limited to the period 7 October 2013 to 15 October 2015 (the “Relevant Period”) – the same period as that stipulated in the original determination.

12. The parties agreed that the only issue to be determined is whether the Applicant is entitled to the costs of tree services during the Relevant Period. 

13. In relation to that issue, the Respondent argued that “tree services” should be included in the amount of time allocated for “gardening” generally and that no extra provision should be made for the removal of trees.  The Applicant argued, however, that he required the 6-8 hours extra time allocated for tree services in the determination of 7 October 2013.  This would be in addition to the time allocated for gardening generally.

14. A further issue arises in relation to tree services.  In the event that the Tribunal finds that the Applicant is entitled to additional time for tree services, the Tribunal will need to determine how much of the $1600 he spent on tree services during the Relevant Period can be claimed.  The Applicant claims he is entitled to the full $1600 as this is a “reasonable amount” in the circumstances.  The Respondent, on the other hand, argues that there is no scope within the current legislative scheme for the Applicant to be reimbursed for the full $1600 and that he cannot receive compensation greater than $442.40 for household services used in any particular week at the relevant time.

    LEGISLATION

15. Section 29 of the SRC Act relevantly provides:

    (i)Subject to subsection (5), where, as a result of an 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.

    (ii)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 he or she is able to provide those services after that date;

    b)the number of persons living with the employee as members of his or her 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;

    e)the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).

    Note:   In relation to paragraph 2(d), see also subsection 4(2).

1. The Respondent explained before this Tribunal that the maximum amount specified in s 29(1) is adjusted in accordance with the consumer price index. At the time of hearing, the statutory weekly maximum under s 29(1) is $449.92.  At 9 December 2014, the statutory weekly maximum was $442.40. This, the Respondent argued, means that the most the Applicant can receive in any given week for all households services combined is $442.50.  This is discussed further below.

   EVIDENCE

2. The Applicant was self-represented at the hearing of this matter but was greatly assisted by his wife. Both the Applicant and his wife struck the Tribunal as articulate, entirely credible and trustworthy.

3. The Respondent was represented by counsel, Mr Tom Offer, instructed by Ms Ladhams of the Australian Government Solicitor.  Mr Offer and Ms Ladhams very much assisted the Tribunal in relation to what issues were relevant and what discretion, if any, the Tribunal had in relation to the amount of compensation available to the Applicant.  The Tribunal notes, in particular, the curtesy shown by Mr Offer to the Applicant and his wife who, as noted, were legally unrepresented. This particular style of advocacy allows the Tribunal to focus on what matters, rather than obsessing on procedure and form.

4. The Tribunal received a detailed Statement of Facts, Issues and Contentions from the Respondent (“SFIC”) dated 31 March 2016.  The Respondent’s SFIC was prepared by Ms Ling from the Australian Government Solicitor.

5. The Applicant also prepared a detailed SFIC dated 2 May 2016 comprising 9 pages with an annexure outlining the Applicant’s household assistance determinations between March 2000 and April 2015.  The Tribunal also received a further Written Statement from the Applicant dated 12 March 2016 in relation to the Konekt Report (discussed below) comprising 4 pages.

6. The Tribunal had before it a set of T-documents consisting of 330 pages.  In addition, it had before it an “Activities of Daily Assessment Report” dated 9 November 2015 from Konekt and a set of maps showing the size and location of the Applicant’s property. 

7. The Tribunal was also provided with a copy of the “2010-2014 Statutory Benefit Rates Under the SRC Act”.  These rates are relevant to the determination of the amount of compensation available to the Applicant in any given week for household services under section 29(1) of the SRC Act.

8. A summary of the evidence relevant to this matter was provided by the Respondent in their SFIC dated 31 March 2016.  The Tribunal notes relevantly as follows.

   Medical Evidence

   Comcare Household Services Assessment Report, Stephen Thomas, Rehabilitation Consultant, 25 March 2013 (T130, p235)

9. As noted above, there was an “Assessment of Activities of Daily Living Report” conducted in March 2013 by a Rehabilitation Consultant, Mr Stephen Thomas.  His findings resulted in the determination of 7 October 2013, which, relevantly, allowed for 6-8 hrs per year for tree services.

10. As noted by the Respondent, Mr Thomas’s comments make it clear that in respect of gardening and cleaning, assistance was required to undertake some of the heavier requirements of this work.

11. The Tribunal notes the following information provided in Mr Thomas’s report:

    b)        Medical information

Topic	Comments	Reported by (include date and source of any medical docs)
Brief history of injury	·    No specific injury ·    Reported strain to back through loading and unloading activities associated with Porter role ·    Injury resulted in displacement of lumbar intervertebral discs	Claim Summary
Diagnosis	Intervertebral disc displacement – Thoracic level 11-12	Claim Summary Medical Certificate 1/2/13
Prognosis	·    No improvement in condition, however able to return to full time work in a lighter alternative role ·    Reduced physical capacity	Worker Medical Certificate 1/2/13
Treatment	Only exercises recommended by the physiotherapist – no hands on treatment	Worker Medical Certificate 1/2/13
Medication	Capadex (analgesia)	Medical Certificate 1/2/13
Medical restrictions	·    Normal hours and days ·    No lifting heavier than 10kg ·    Avoid repetitive use of affected body part	Medical Certificate 1/2/13
Current symptoms	Minimal with careful management Pain in thoracic spine	Worker GP-12/12/12
Surgery	None indicated	Worker
Other non-compensable medical conditions	Other significant abdominal surgery – colon removal, colostomy and later reversal/reconstruction	Worker

...

e)        Personal/household circumstances

Topic	Comments
Living arrangements/details of other adults living in the house	Wife and boarder (boarder does not contribute to household chores).
Detail number and age of children and age appropriate activities e.g. school work (include hours), study etc	No child care responsibilities, except for grandchildren (predominantly handled by wife)
Details of other people who provide assistance in tasks but do not live in the house	Nil
Work (including part-time work) and other activities (i.e. school, sporting, recreational, community commitments) undertaken by household members – please specify the nature of each commitment and the time taken for each activity for each household member	Wife: semi-retired to assist with care of grandchildren (approx. 2 hrs/day)
Details of any house members who have a disability or illness etc.	Wife also needing to be mindful of manual activities, due to limitations arising from motor vehicle accident history

f)Tasks currently completed by external services – please list them (if applicable)

Window cleaning – undertaken once per year by Brendon Wood Window Cleaning.

g)Current presentation (please state if report and/or observed; wherever possible link to functional activity and quantify position tolerance)

Title	Comments			Reported			Observed
Physical
34.       General mobility e.g. use of aids, tolerance, terrain			35.       No aids used 36.       Mobility fine when time taken			X			37.       Observed moving around the home
38.       Sitting tolerance(time)			39.       Not restricted, however managed by opportunity to move and walk			X			40.       Observed during assessment interview
41.       Standing tolerance(time)			42.       No issues, provided careful			X			43.
44.       Walking tolerance (time and distance)			45.       No issues, provided careful			X			46.       Observed only during walk through of home
47.       Lifting capacity (weights)			48.       less than 10kgs (medical certificate)			X			49.       Noted limitation detailed in medical certification
50.       Transfers 51.       Bed			52.			X			53.
54.       Chairs 55.       Car			56.       Independent in all transfers			X			X
57.       Toilet			58.			X
59.       Shower			60.			X
61.       Squatting			62.       Independent			X
63.       Kneeling			64.       Independent			X
65.       Bending			66.       Independent			X
67.       Twisting			68.       Avoided, carefully monitor postures			X			X
69.       Endurance/ energy levels			70.       Decreases over the work week and dependent on work demands			X			71.
72.       Overhead reaching			73.       Reports okay – careful			X			74.
75.     Ability to perform other tasks			76.     Attempts to perform most tasks around the home out of necessity – operates within comfort levels and medical limitations			X			77.
78.     Psychological 79.     Including medication or treatment
80.     Depressive/ anxiety symptoms		81.     Just normal stressors (although presently dealing with death of an extended family member)			X			82.
83.     Sleep		84.     No problems reported			X			85.
86.     Appetite		87.     Needs to carefully monitor diet because of colon removal			X			88.
89.     Cognition		90.     No problems reported or noted			X			91.     x (not tested – just observations during assessment)

h)Reported pre-injury and post-injury function for identified task(s)/issues (Please clarify if worker performed the task prior to the injury or did they demonstrate that they could perform the task)

Task	Pre-injury: was worker responsible for this task?	Post injury: is worker able to perform task?	What assistance is necessary to perform the task?	Predicted timeframe until assistance no longer required
Window cleaning	Self	Limited by volume and physical demands	Task presently undertaken by a contractor	Ongoing
Garden/lawns	Self	Within restrictions	Was using a garden contractor, however unable to afford at present	Ongoing
Trees	Self	Limited, within restrictions	Need assistance of a contractor for heavy aspects of workload	Ongoing
House cleaning	Shared with wife	Within restrictions	Need assistance of a contractor	Ongoing

…

j)Recommended assistive equipment to maximise independence. Assistive or adaptive techniques discussed with the injured worker.

Name of equipment/aid	Strategy for independence	Impact on need for services	Supplier of this equipment/aid
Gardening activities – trees, gardens, lawns	Use self-pacing to complete light tasks that are within medical restrictions	Services still required to undertake heavier requirements	New contractor to be identified, pending Comcare support (unable to coordinate under current arrangements)
Cleaning – house and windows	Use self-pacing to complete light tasks that are within medical restrictions	Services still required to undertake heavier requirements	New contractor to be identified, pending Comcare support (unable to coordinate under current arrangements)

1. As summarised by the Respondent for the Tribunal, Mr Thomas made the following recommendations in relation to the level of household assistance required:

   i)Window cleaning: 4-5 hours, twice per year, stressing the volume of work and the fact that the living conditions (particularly in relation to heights) make independent cleaning difficult and unsafe given the Applicant’s medical restrictions.

   ii)Gardens/lawns: 2 hours, variable with season (noting previously 3 weekly during spring/summer and 5 weekly during autumn/winter). Mr Thomas recommended some additional support with gardening and lawns due to the size of the property, nature of the vegetation and gradient of the property (which, he notes, increases physical demands of tasks). He also noted that unkept garden conditions could compromise safe mobilising around property and fire safety.

   iii)Trees: 6-8 hours per year: Mr Thomas noted that it was a shire requirement to maintain properties for fire hazard reduction purposes, and noted that Mr ...’s property backs onto national park land. Mr Thomas considered that the bulk of the work was too physical and beyond medical restrictions.

   iv)House cleaning: 2-3 hours weekly. Mr Thomas noted that the applicant has a large house and that his wife also has limited physical capacity and cleaning tasks are particularly back intensive. It was noted in the report that a boarder was living with the applicant, but did not provide any assistance with household tasks (although there was no indication as to why the boarder does not assist with household tasks).

2. Mr Thomas was asked to comment on any other factors which contribute towards any need identified in his recommendations (for example, were these roles previously performed by the injured worker? Have social circumstances changed such that these roles are now the responsibility of the injured worker?).  Mr Thomas advised as follows:

   Mr ... has previously advised that he carried the main responsibility for the care and maintenance of his property prior to his injuries. This responsibility increased even more so after his wife’s motor vehicle accident in 1996. Prior to his work injury, he reported he never utilised professional garden or cleaning services, however had to resort to these to keep his property under control.

   Mr ... advised that his wife’s injuries also decreased her capacity to undertake the tasks she previously took main responsibility for, such as the cleaning. With his own injury, he has been unable to take up the shortfall.

   Mr ... advised that it has become difficult to engage contractors under the conditions required by Comcare, i.e. not always easy to purchase services within amounts permitted, not always easy to provide business documentation. As such, through necessity they have resorted to doing some things themselves again (as able), even though physically it is not in their best interests to do so.

   Endorsements of Applicant’s Treating Practitioner, Dr Stevens

3. As summarised by the Respondent for the Tribunal, each time the Applicant submitted a request for household services, he was required to provide an endorsement from his treating practitioner, Dr Stevens.

4. The endorsements for the relevant period were summarised by the Respondent as follows.

   Application for household or attendant care and child care services, 12 December 2012, endorsed by Dr Stevens (T126 at 226)

5. The Applicant requested assistance with window cleaning for 4-5 hours twice per year, gardens for 2-4 hours per fortnight, trees for 6-8 hours once per year and housecleaning of 4-6 hours. This request was endorsed by Dr Stevens who said that due to pain in his thoracic spine, the applicant was unable to undertake gardening, vacuum cleaning, housework and tree removal and recommended assistance of 2 hours per week plus window cleaning twice per year.

   Application for household or attendant care and child care services, 28 November 2014, endorsed by Dr Stevens (T143 at 257)

6. The Applicant requested assistance with window cleaning for 4-5 hours twice per year, gardens and lawns for 2-4 hours per fortnight, trees for 6-8 hours once per year and housecleaning of 4-6 hours per fortnight. This request was endorsed by Dr Stevens who said that due to pain in his thoracic spine, the applicant was unable to undertake gardening, vacuum cleaning, housework and tree removal and again recommended assistance of 2 hours per week plus window cleaning twice per year.

   Application for household or attendant care and child care services, 25 February 2015, endorsed by Dr Stevens (T154 at 286)

7. The Applicant requested assistance with window cleaning for 8-10 hours twice per year, gardens and lawns for 4-8 hours per week, trees for 12-16 hours twice per year and housecleaning of 8-12 hours per week. This request was endorsed by Dr Stevens who said that due to pain in his thoracic spine, the applicant was unable to undertake gardening, vacuum cleaning, housework and tree removal and again recommended assistance of 2 hours per week plus window cleaning twice per year.

   Documents Produced Under Summons by Mead Medical Centre

8. These documents comprise brief clinical notes for the period 19 August 2004 to 2 July 2015.  As summarised by the Respondent for the Tribunal, these notes show that there was an exacerbation in the Applicant’s back pain in November 2006 after he had a fall and that there were “flare ups” or significant strain on 28 March 2007 and 25 June 2007. There was also a flare up prior to 8 September 2008.

   Workers Compensation Progress Medical Certificates

9. As summarised by the Respondent for the Tribunal, the most recent Progress Medical Certificate in relation to the Applicant is dated 25 February 2015 (T155 at 290).  It states that the Applicant is fit for 8 hours work per day 5 days per week, with the following restrictions:

   ·No lifting anything above 10kg

   ·Avoid repetitive use of the affected body part

   ·Able to undertake duties agreed between doctor and employer

   ·Able to undertake vocational rehabilitation program

   ·Avoid jolting and jamming activities (e.g. repeated steps).

10. The Respondent contended as follows in relation to the Applicant’s Progress Medical Reports:

    28.      The restriction of avoiding jolting and jarring activities first appeared in the progress medical certificate of 25 February 2015. However, aside from this change, the progress medical certificates in relation to the applicant’s back injury have all been essentially the same since 2008. In the progress medical certificates prior to 2008, the only material difference was a further restriction of ‘Needs to be able to take postural breaks and work at own pace. Suggest examining changing load control duties to operation support’ (see, eg T56, p147), which appeared in the medical certificates from 25 June 2007 to 4 August 2008.

    29.      It appears that there was an exacerbation of the Applicant’s condition in February 2004, which required him to take 5 days off work, and it was after this time that the restriction on lifting more than 10kg was imposed (see T56, p100). There had, in earlier years, been a restriction on lifting more than 5kg, but this was not included in medical certificates from 14 December 2001 to 19 February 2004.

    Report of Lin Huynh of Konekt dated 9 November 2015 (the “Konekt Report”) (R2)

11. During the course of the proceedings before the Tribunal, the Respondent referred the Applicant for an independent assessment by Konekt Health Assessors. 

12. The Konekt Report, prepared by Ms Huynh, provides relevantly as follows:

DETAILS OF INJURY/INCAPACITY
Background Information/Injury Details & Diagnosis:	Mr ... advised that in 1998 he had returned home from work and indicated that he felt there was something wrong with his kidney. Mr ... noted that he attended a consultation with Dr Drurey (General Practitioner) for an initial consult and was referred for renal tests that resulted in nil issues. Mr ... indicated that he underwent a CT scan that confirmed herniated discs at the levels of T10/T11 as a result of the loading and unloading tasks involved in his role as a Porter. Mr ... noted that surgery was not recommended as Dr Knuckey (Neurosurgeon) reportedly indicated it was too risky and that in 10 years or so, his discs would calcify and fuse. Mr ... reported he was ultimately advised that he was unable to return to his pre-injury duties as a Porter and worked as a Load Controller for 9 years that was predominately desk based, however considered it a mentally stressful role. Mr ... advised he moved into a role as an Operations Support and had been completing this role on a full time basis since 2006 to date.
Current Treatment/ Medications:	At the time of the assessment, Mr ... reported: •       Previously ingesting Capadex, however had commenced ingesting Codapane Forte on 30/06/2015 on a daily basis to assist with managing his pain symptoms. Mr ... noted he ingests twice daily if he experienced an increase in symptoms. •       Completed home based exercises on a weekly basis •       Completed daily morning exercises and stretches at work.
Current Symptoms:	At the time of the assessment, Mr ... reported the following: •       When he was tense he reported experiencing an increase in symptoms. On a Visual Analogue Scale (0 = no pain, 10 = worst pain imaginable, requiring medical intervention), Mr ... rated his pain as 0/10 when he was relaxed, however when he was tense he rated his pain as 7/10 in his back. Mr ... advised that he was tense at the time of the assessment. •       Reported that jarring of his back from walking over uneven terrain, climbing up and down stairs, trips, slips and falls aggravated his symptoms, whilst rest and medications assisted with relieving his symptoms. •       Advised his symptoms were usually minimal by being careful and cautious with his movements on a day to day basis.
Current Work Capacity:	Mr ... advised he was currently working full time as an Operations Support for Qantas and had worked in this role since 2006 to date. According to the most recent Workers’ Compensation Progress Medical Certificate dated 30 July 2015, Mr ... had some capacity for work: Restricted hours = 8 hours per day Restricted days = 5 days per week No lifting anything heavier than 10kg
Prognosis:	According to the most recent Workers’ Compensation Progress Medical Certificate dated 30 July 2015, it was indicated that Mr ...’s pain remains, however had returned to full time work completing an alternative role.
Current Functional Status:	Mr ... reported the following functional tolerances: •    Sitting: No limitations with his sitting tolerances •    Standing: No limitations with his standing tolerances •    Walking: No limitations with his walking tolerances •    Lifting / Carrying: Mr ... is restricted to a 10kg lifting restriction. •    Driving: Mr ... reported he was independent with driving and experienced nil issues.
SOCIAL SITAUTION & DESCRIPTION OF DWELLING
Ability of household members/friends to provide assistance		Mr … reported he resided with his wife and son. … Mr … indicated his wife had retired, however was also restricted in her ability to contribute towards household and gardening tasks due to a motor vehicle accident in 1996 in Tasmania.  Mr … noted his wife also experiences issues with her back and shoulders, however continues to self manage. Mr … advised that his son does not have the ability to contribute to maintenance of the house and garden …
IMPACT OF INJURY ON COMPLETION OF DOMESTIC TASKS Impact on ability to perform domestic tasks
Task		Impact	Task Completed Pre-Injury	Task Completed Post Injury
Laundry/Ironing		Mr ... reported difficulty leaning forward over his top loader washing machine to retrieve the clothes	Wife	Wife currently completes the task with nil concerns
Cleaning		Mr ... advised that the cleaning tasks were shared with his wife.  Mr ... reported that he was currently receiving cleaning services for 2 to 3 hours weekly.  Mr … reported that he services involved cleaning the upper level only which included vacuuming, cleaning the bathrooms and toilets, dusting, sweeping and mopping the floors.	Mr … and his Wife	Mr … reported he was able to wash the dishes and complete some light cleaning around the house that did not involve repetitive forward bending.
Meal Preparation		Mr … reported nil impact on his condition as his wife completed meal preparation and cooking tasks.	Wife	Wife
Shopping		Mr ... reported that loading and unloading of the groceries did impact on his back symptoms.	Shared with Wife	Mr … reported that they had recently started using online shopping to complete shopping tasks to reduce the need to load and unload groceries.
Minor Home Maintenance		Mr ... reported he was currently unable to complete minor home maintenance tasks such as climbing; a ladder to change a light bulb.	Mr ...	Mr ... reported that he was able to ask assistance from his son and neighbour to complete minor home tasks when required.
Gardening Mr ...		Mr ... reported he was unable to complete a majority of his gardening tasks. He confirmed that gardening services were currently in place with a garden contractor hired for 2 hours; every three weeks. Mr ... advised he had recently changed to a new Gardener; however reported the previous Gardener would weed, clear footpaths using a leaf blower, cut up fire wood, dispose of the larger branches and clean up leaf litter around his property.	Mr ...	Mr ... reported he had purchased a lightweight electric lawn mower and a mulcher. Mr ... reported that he and his wife shared the task of mowing the small patch of lawn at the front of their property using the mower. Mr ... reported his wife would maintain her flowers and potted plants located throughout the property and water the gardens as tolerated.
Maintenance of trees		Mr ... reported he was ordered by the shire to remove two trees in addition to trimming of branches which overhung the roof of his home for compliance with shire fire regulations	Mr ... reported this was the first request by the shire to remove trees for compliance with the shire’s fire regulations however advised he would typically perform tree maintenance/trimming independently prior to his injury.  Mr … did state that he would not likely have been able to perform the cutting down of trees independently.	Mr … stated that he hired Arlington Trees Services to remove the trees.  Mr ... indicated the cost of the tree removal was $1600.00
Window Cleaning		Mr ... reported he was unable to complete the window cleaning tasks and currently had a contractor to complete the task twice per year.	Mr …	Mr … reported he was unable to complete window cleaning tasks due to difficulty with accessing a ladder and working at heights in order to clean the windows.
Pool		Mr … reported nil impact on his ability to maintain his pool.	Mr …	Mr … reported cleaning his pool was automated where he required turning the switch on.
Fireplace		Mr … indicated he experiences difficulty with chopping and collecting wood.	Mr …	Mr … advised that his current garden contractor would assist with chopping the firewood and stacking it.  Mr ... indicated that his son would assist with bringing the wood upstairs to the fireplace when required.

Impact on ability to perform activities of daily living

Task

Impact

Mobility – Indoors/outdoors

Konekt observed Mr ... to ambulate inside and outside his home with nil issues, however observed Mr ... to be cautious whilst ascending and descending stairs where he would step one foot at a time whilst holding the wall.

Mr ... advised that the jarring whilst stepping would aggravate his symptoms.

JUSTIFICATION FOR SERVICE RECOMMENDATIONS

1.1      Was there any change in Mr …’s accepted condition to justify an increase to the level of household assistance sought by him in his claim on 12 December 2012?  If yes, please provide your reasoning and identify any medical evidence which supports this change.

At the time of the assessment, Konekt discussed with Mr ... regarding the change in the level of assistance that was requested in December 2012 and whether there was an incident or an aggravation of his symptoms preceding or during this time to support his request. Konekt identified that there was no medical reasoning behind an increase in support for household cleaning and gardening services.

11.2    Does Mr ... continue to require household assistance as a result of his accepted condition? If the answer is yes:

(a)      Which household services does Mr ... require assistance with, and what is the level of such assistance that is reasonably required by him?

As a result of his compensable injury, Mr ... requires continued assistance with household cleaning, gardening and window cleaning services. Household cleaning services is to provide assistance with tasks including vacuuming, cleaning the bathrooms and toilets, sweeping and mopping the floors which Mr ... advised he would assist with prior to sustaining his injury. Gardening services is to provide assistance with weeding, clearing the footpaths using a leaf blower, cutting up fire wood, disposing the larger branches and cleaning up leaf litter which Mr ... advised he would be responsible for prior to sustaining his injury. Mr ... would require assistance for window cleaning due to difficulty with accessing a ladder and working at heights in order to clean the windows as this was also a task that Mr ... advised he was responsible for prior to sustaining his injury.

(b)      To what extent, if any, were any of these household services undertaken prior to his injury (on 24 October 1998)?

Mr ... reported that the following tasks were shared between himself and his wife prior to sustaining his injury:

•         …

•         Gardening: Mr ... indicated he was responsible for a majority of the gardening tasks prior to his injury that included clearing footpaths, cutting up fire wood, trimming the tree branches and disposal of the larger branches and cleaning up leaf litter around his property. 

(c)      Were any of these household services provided by other members of Mr ...’s household prior to date of his injury? If the answer is yes, please identify who the members of his household were, their ages and their need for household services.

Mr ... reported the responsibility of household cleaning and gardening was shared between him and his wife. However, Mr ... advised that his wife also experiences issues with her back and shoulders that limit her capacity to complete more than she normally would to accommodate for his physical restrictions due to her own injuries as a result of a motor vehicle accident in 1996.

(d)      Are there other members of Mr ...’s household that could now reasonably be expected to provide any of these household services for themselves and Mr ...? If the answer is yes, please identify who the members of his household are, their ages and their need for household services?

No. …

11.3    Please provide any other comments or observations you consider to be relevant.

At the time of the assessment, Mr ... reported he was ordered by the shire to remove two trees and to trim overhanging branches on his roof to meet compliance with shire fire regulations. Mr ... reported this was the first request by the shire to remove trees for compliance with the shire’s fire regulations and as a result hired Arlington Trees Services to remove the trees. Mr ... indicated the cost of the tree removal was $1600.00 and reported he was reimbursed by Comcare a partial portion of the total costs amounting to $442.40. Mr ... reported that prior to the injury he would be able to use a ladder and a chainsaw to cut the large branches to trim the trees, however had indicated that he would still likely be required to hire tree services for complete removal of the trees

1. Based on the above, Ms Huynh recommended the following services for the Applicant:

Service	Hours and Duration of Service	Quotes	Date of Functional Re-Evaluation
Window Cleaning	Currently receiving window cleaning services twice per year	Continue current services in place.  If additional quotes are required, window cleaning service providers would be required to sight the property in order to provide an accurate quote.	6 months
Gardening	2 hours every fortnight	Continue current services in place.  If additional quotes are required, gardening service providers would be required to sight the property in order to provide an accurate quote.	6 months
House cleaning	2 hours weekly	Continue current services in place … $66.00 first 2 hours $23.00 every hour after first 2 hours Total – $89.00	6 months

CONSIDERATION

1. As agreed between the parties, the Tribunal is required to determine whether the Applicant is entitled to the $1600.00 for tree services delivered during the week of 9 December 2014 at a cost of $1600.00.

   Is the Applicant entitled to tree services?

2. In relation to this issue, the Respondent contended as follows;

   General considerations

   41.It is relevant to consider the matters set out in s 29(2) of the SRC Act in determining what services were reasonable required by the applicant.

   42.The respondent makes the following observations about s 29(2) factors:

   42.1The applicant indicated to both Mr Thomas and Ms Huynh that prior to his injury:

   42.1.1that he and his wife shared the household cleaning;

   42.1.2that he was responsible for cleaning the windows; and

   42.1.3that he was responsible for the majority of the gardening and the tree pruning.

   42.2The applicant indicated to both Mr Thomas and Ms Huynh that he lives with his wife and one other person, … and that the other person does not contribute much to household tasks, but will sometimes assist with bringing in firewood and small maintenance jobs. He indicated to Ms Huynh that the other person does not share the same part of the house as he and his wife.

   42.3The applicant indicated to both Mr Thomas and Ms Hyunh [sic] that his wife was involved in a motor vehicle accident in 1996 and that she has some restrictions in her ability to contribute to household and gardening tasks due to soreness in her neck and shoulders. The applicant’s wife’s motor vehicle accident took place prior to the applicant’s injury.

   42.4The applicant’s wife is no longer working.

   43.Section 29(2) does not limit the matters that a decision-maker can take into account in determining the household services that are reasonably required. The respondent contends that the following factors will be relevant considerations in the present case:

   43.1The evidence from the applicant’s treating doctor, in the form of the progress medical certificates, endorsements on the household services applications and the records produced under summons, which do not suggest that there has been any decline in the applicant’s medical condition as a result of his injury that would explain the request for increased services;

   43.2Information from the shire and the applicant’s insurer about preparing his property to reduce risks associated with bushfires.

   43.3The activities of daily living assessment report.

   44.Taking into account all these considerations, the respondent makes the following contentions in relation to the specific services requested by the applicant. The respondent refers to the medical evidence that supports each contention made.

   …

   Gardens

   47.The reviewable decision approves 2 hours per fortnight for gardening.

   48.The respondent contends that it is open to the Tribunal to affirm this aspect of the decision on the basis of the evidence of Ms Huynh. The reports of Mr Thomas and Dr Stevens would support a lower level of gardening services. There is no medical evidence available to support the 4 hours per fortnight requested by the applicant in his request for reconsideration.

   …

   Tree Services

   51.Approval for 6-8 hours free services once per year was provided in the determination of 7 October 2013, but removed in the reviewable decision of 1 April 2015.

   52.The respondent contends that it is open to the Tribunal to affirm this aspect of the reviewable decision, namely that the applicant is not entitled to compensation under s 29(1) of the SRC Act in respect of tree services, on the basis of the following evidence:

   52.1The report of Ms Huynh, which concluded that although the applicant would have removed some branches by himself prior to his injury, he would have required assistance from a tree removal service to completely remove trees; and

   52.2The information provided by the applicant in relation to the council guidelines and the APIA insurance guidelines with his request for reconsideration, in which he noted that ‘after recent bushfires in the Perth Hills the department of Fire and Emergency Services has issued a series of guidelines for Hills residents to reduce the risk of fire to their homes’, from which it can be inferred that the applicant needed the work done to comply with shire and insurance guidelines rather than as a result of his accepted condition. The respondent contends that some of the work required by the shire, such as branch removal can be done within the scope of the other gardening services approved by the respondent in the reviewable decision. Some other requirements, such as tree removal, are not tasks that would have been done by the applicant even if he was not suffering from his compensable condition and the cost of this service should therefore not be payable by the respondent.

   53.The respondent acknowledges that there is some medical evidence to support a finding that the applicant requires assistance with tree lopping, in particular, the report of Mr Thomas, and the endorsements of Dr Stevens. There is nothing, however, in Dr Stevens’ endorsements to suggest that the level of assistance requested by the applicant is required. Although Dr Stevens has listed tree removal as something with which the applicant requires assistance, Dr Stevens has suggested that the applicant requires only 2 hours assistance per week for this as well as gardening, vacuuming and housework. There is also nothing in Dr Stevens’ endorsement to indicate the extent of the tree removal tasks conducted by the applicant prior to his injury.

   54.The 2013 report of Mr Thomas suggests that it is a shire requirement for the applicant to maintain his property for fire hazard reduction purposes and that the bulk of the work is too physical and beyond medical restrictions. Although the report indicates that the applicant was responsible for tree maintenance prior to his injury, there is no evidence that the applicant would have undertaken tree removal, as opposed to tree pruning, prior to his injury. The medical restrictions in place at the time of this report were to avoid lifting anything heavier than 10kg and to avoid repetitive use of affected body part.

   55.In an earlier report dated 14 May 2003 by Mr Thomas in relation to an earlier request for household services by the applicant, Mr Thomas reported that (T46, p83):

   Mr ...’s Household Services request is primarily for gardening assistance. He has had to engage the services of a gardening contractor to complete the tasks he is unable to perform. The contractor attends on a 3 weekly basis during the Spring/Summer months and 5 weekly basis during the Autumn/Winter months. He usually takes about an hour, at a cost of $25 per hour, to mow the lawns, maintain the lawn edges, whipper snip, weed the garden beds and complete some pruning of the bushes and trees. Twice yearly the contractor attends for a major clearing of the under-brush at the rear of the property, which involves pruning, brush cutting and burning off the dry vegetation. This activity is required by the Shire regulations and costs approximately $100 for the 4-5 hours of work.

   56.With the increase in gardening services provided in the reviewable decision to 2 hours every fortnight, the major cleaning at the rear of the property can be incorporated into the increased gardening assistance that was approved in the reviewable decision.

   Applicant’s Entitlement to Tree Services

   57.If the Tribunal accepts the respondent’s contentions above and affirms the reviewable decision insofar as it relates to reimbursement of the cost of tree clearing services, it follows that the applicant will not be entitled to reimbursement for the $1,600 that he spent on tree services on 9 December 2014.

3. In relation to the above, the Applicant contended as follows in his SFIC dated 2 May 2016:

   4.At no time did the applicant state he would not have cut down these small trees and would have engaged a tree service prior to his injury as stated in the Konekt report. He said he had previously used contractors and was referring to the large trees which had previously been cut down by Arlington's. He was very capable before his back injury and had many times used a chain saw to cut and collect firewood which he is no longer capable of doing. Again we dispute the accuracy of the Konekt report.

   5.Comcare has suggested that the tree maintenance can be managed within the allowance for gardening services. Over the years this has been a very intermittent allowance which barely covers the cost of lawn mowing and limited gardening assistance. Also the gardener we currently employ states that his insurance will not cover him for tree lopping. This is a specialist service and as such commands a higher cost due to insurance and specialized equipment such as chain saws and mulching equipment.

   …

   1.The SRC Act has been quoted to limit the amount payable for the tree services employed by the applicant. The correspondence from Comcare regarding the amounts payable is confusing and misleading. The applicant has in good faith employed these services to carry out work which he was entitled to fully expecting to be reimbursed for the entire amount. Prior to the compensable injury he would have been able to carry out this work himself.

   …

   6.The applicant contends that the determination which was in force at the time of the Tree service which is under contention (9th December 2014) allowed for the use of Tree Services in its recommendation and so should be upheld.

   7.There is more than sufficient evidence before the Tribunal from treating Doctors and Household Assessment reports prior to the use of the Tree Service to warrant the use of these services.

   ...

   1.The applicant was responsible for the majority of the gardening and pruning prior to the injury. The applicant was never asked during any of the household assessments if he had cut down any trees prior to his injury but would have answered in the affirmative as he had often collected fire wood and on occasions had cut down trees.

   When Ms Hyunh [sic] asked about the trees she misinterpreted the response from the applicant stating that he would not have cut down the trees in question but would have employed a contractor to do so prior to his injury.

   …

   10.The applicant asks that the Tribunal affirm all of the services required for the maintenance of the house and garden at the levels requested in December 2012 and that the Respondent reimburses the full amounts for such services,

   11.The inference that the maintenance of the trees and other vegetation on the block was a new requirement at the time that the work was undertaken and specifically ordered at this time by the Shire or the Household Insurer is false. There has always been a requirement to keep the block maintained especially prior to each fire season and the Shire and insurer issue guidelines every year as to what the current requirements are. This often necessitates the need for more than just a gardener's capabilities when it comes to tree maintenance. Two hours per fortnight for gardening with the suggestion that this include tree maintenance is unreasonable. The applicant refutes the statement that Dr Stevens has indicated that the applicant was incapable of tree removal prior to the injury. This is an assumption without evidence.

   12.The respondent has acknowledged that in both the 2003 and 2013 Household assistance reports it was a requirement that the property be maintained for fire hazard reduction purposes and that the bulk of the work is too physical and beyond the medical restrictions of the applicant. Nothing has changed in this respect so the applicant questions why the respondent is seeking to alter the level of Household Assistance to exclude the tree maintenance.

4. The Tribunal also notes the Applicant’s Written Statement of 12 March 2016, in which he states:

   •In the section on Maintenance of trees (which was the main reason for our appeal) Ms Huynh has stated that Mr ... said he was ordered by the Shire to remove two trees in addition to the trimming of overhanging branches to comply with shire regulations and that this was the first request he had had from the Shire for compliance. There was no formal direction from the shire to remove these trees. There was general advice given via the Shire rates notices and also from the Home insurer as to requirements of homeowners to keep buildings free from overhanging branches. The tree surgeon from Arlington trees advised on the removal of the saplings as they were likely to regrow in the same position and become a problem again in the future. The trees that were removed were regrowth saplings and not large trees.  We have previously removed large trees which were creating a hazard and had independently paid for the large trees to removed [sic].

   •Prior to his back injury … would have been quite capable of removing these small saplings, and indeed had often cut and collected fire wood using a chain saw and trailer.

   •He did not say that he would not likely have been able to perform the cutting down of the trees independently. To have said this would have totally undermined our entire appeal in relation to reimbursement of the tree maintenance costs and would give the respondent sufficient grounds to have the case dismissed. …

   …

   •The final observation regarding the removal of the trees by Arlington tree Services was again not accurate. … did not indicate that he would have hired a tree contractor for removal of these small trees prior to his injury. He would have been quite capable of doing this himself.

5. Having reviewed the evidence before it, the Tribunal disagrees with the conclusion drawn by the delegate for the Respondent dated 1 April 2015 that the Applicant is not entitled to tree services during the relevant period.  Approval for 6-8 hours tree services once per year was provided in the determination of 7 October 2013.  That amount is justified on the evidence and should be reinstated.

6. The Tribunal notes that in the determination of 1 April 2015, the delegate, in rejecting the need for tree services, relies heavily on the fact that the removal of trees was a shire requirement.  Further, she was not satisfied that this was a task that the Applicant would have performed independently prior to his injury. She states that the tree removal services would be required irrespective of the Applicant’s injury.

1. The Tribunal disagrees.  With respect, the fact that a local shire might want residents on large bush properties to cut back and remove trees is neither here nor there.   It clearly has to be done to avoid fires and there is no reason to believe the Applicant would have not have done it at some point with or without council regulations. 

2. Further, the fact that the Applicant waited until after he was injured to remove larger trees is irrelevant, other than to the extent that, once injured, he could not do it himself.  In that regard, there is considerable reference throughout the medical evidence on the need for tree services of the sort claimed, going back as far as 2003. Indeed, the Applicant’s doctor, Dr Stevens, refers to it consistently in his endorsements.  Importantly, occupational therapist Stephen Thomas in his assessment of 25 March 2013 makes clear reference to the difficulties clearing a block of this size of trees for someone with the Applicant’s medical conditions.  In relation to the matters set out in s 29(2) of the SRC Act in determining what services are reasonably required by the Applicant, the Tribunal notes that prior to his injury, the Applicant did undertake tree pruning.  There is no evidence that the Applicant would not have removed trees himself prior to his injury. The evidence is clear, however, that he can’t possibly do it himself now given his physical restrictions and given the demands of his property.  Further the evidence shows that the Applicant’s wife cannot assist him now with tree pruning and there is no one else living with him who is able to assist.

3. The Respondent relied heavily in these proceedings on the evidence contained in the Konekt Report.  The report’s author, Ms Huynh, was called as witness. 

4. The Tribunal has reservations about the value of Ms Huynh’s written report.  In particular, although Mr Huynh makes specific reference to the fact that the Applicant reported that prior to the injury he would be able to use a ladder and a chainsaw to cut large tree branches, she then states that he had “however indicated that he would still likely be required to hire tree services for complete removal of the trees.” It was unclear to the Tribunal whether that statement referred to tree removal prior to or post injury.  When cross examined and then asked by the Tribunal, Ms Huynh made it clear that she had not sufficiently discussed this with the Applicant when visiting his property.  When asked whether it was her view now that the Applicant’s request for 6-8 hours for tree removal was reasonable in the circumstances, she agreed that it was – even though she did not say this in her report. She did not (and indeed seemed reluctant to) address the issue of whether the removal of trees could have been done by the Applicant prior to his injury.  In this regard, Ms Huynh’s evidence was somewhat inconsistent and at times entirely unclear. 

5. In the circumstances, having reviewed and applied the criteria in section 29(2) of the SRC Act the Tribunal finds that there no reason to believe on the evidence before it that had the Applicant chosen to clear and remove trees (both large and small) prior to his injury that he would not have done so.  The fact that he may not have removed large trees prior to his injury is irrelevant. What really matters is that he could have and he would have had the need arose.  When the need did arise, he had been injured, he could not undertake the task himself and there was no one in the household who could assist him. 

6. In the circumstances, the Tribunal agrees with the assessment made in the determination of 7 October 2013 that the Applicant is entitled to tree clearing services in the amount of 6-8 hours once per year. 

   Having found that the Applicant is entitled to tree services, how much can he claim in relation to the $1600 paid for the week of 9 December 2014?

7. In relation to this issue, the Respondent contended as follows:

   58.If ... the Tribunal finds that the applicant was entitled to reimbursement of the cost of tree cleaning services for the period of the reviewable decision, then the Tribunal will need to determine the level of reimbursement to which the applicant is entitled for the services performed on 9 December 2014.

   59.The respondent contends that the maximum amount that could be paid to the applicant for that week is $442.40, which was the statutory weekly maximum that applied at the relevant time. The maximum limit is set by s 29(1) of the SRC Act, as raised in accordance with the consumer price index. The applicant was advised of the statutory weekly maximum rate in the determination of 7 October 2013, where, after setting out the services to which the applicant was entitled, the delegate said:

   The maximum hourly rate payable for each of these services is $45.00. the combined maximum weekly rate payable for these services is $430.77.

   …

   The maximum hourly rates for household help services are not specified in the SRC Act, which means your CSO (Claims Services Officer) can approve any amount as long as it can be considered ‘reasonable’. To help CSO’s decide what is reasonable, we annually publish household help rates, which are available at and entitlements/medical expenses/medical service rates. If you need to claim above these rates, please speak to your CSO.

   However, there is no discretion associated with the maximum weekly amounts payable for household help services, as they are statutory rates fixed by the legislation. These rates are indexed annually in line with the Consumer Price Index (CPI).

   60.The respondent contends that there is no scope within the current legislative scheme for the applicant to be reimbursed for the full $1,600 and that he cannot receive compensation greater than $442.40 for services used in any particular week at the relevant time.

8. In relation to this issue, the Applicant contended as follows:

   1.Comcare states that there is a weekly limit of $442.40 that they can reimburse for Household services. In a determination sent on 7th October 2013 by Kerry Winters (T134) she accepts the need for tree services recommended by Stephen Thomas Household Assessment Report. Her wording of the rates is confusing as she states there is a maximum weekly rate for attendant care services but then goes on to say the maximum hourly rate for household services are NOT specified by the SRC Act, which means your CSO can approve any amount as long as it can be considered 'Reasonable'. This was a one off service not a regular service like the cleaning. We were allowed 6-8 hours for tree maintenance and the subsequent service was performed within this time frame.

   ...

   9.We were only informed of the reduced remittance in January 2015 when the respondent only reimbursed $442.40 of the $1600.00 paid to Arlington Tree Services and the reason that was given was above the approved limit. The notice of determination goes on to say that “Where an item is partially reimbursed it means that the amount claimed for that benefit exceeds what Comcare has determined as appropriate” Not “what the SRC Act states” as has been the reason now given for not fully reimbursing the amount paid to Arlington Trees.

   10.The determination then goes on to say “The limits are established by considering the REASONABLE COST of that benefit in conjunction with limits set by comparable insurance jurisdiction and professional associations” (T149)

   11.We believe that the cost of the tree maintenance was reasonable and that Comcare should fully reimburse the full cost so we appealed the decision.

   ...

   1.The SRC Act has been quoted to limit the amount payable for the tree services employed by the applicant.  The correspondence from Comcare regarding the amounts payable is confusing and misleading.  The applicant has in good faith employed these services to carry out work which he was entitled to fully expecting to be reimbursed for the entire amount.  Prior to the compensable injury he would have been able to carry out the work himself.

   …

   1.The applicant was entitled to tree services for the period that the respondents [sic] is seeking to set aside namely 7th October 2013 to 5th October 2015. The payment of services under contention is for Tree Services carried out on 9th December 2014.

   …

   6.The applicant challenges the maximum amount specified in reimbursing costs associated with the tree maintenance. If the maximum weekly amount is applied to the tree maintenance this work would have taken 4 years to complete given that the determination only allowed for tree maintenance 6-8 hours once per year. The wording in the correspondence regarding the cost of the tree maintenance is confusing at best and the applicant has carried out and paid for the work in the full expectation that the respondent would cover the cost. The applicant maintains that he has incurred the expense in accordance with the determination and has submitted the claim which has only been partially reimbursed.

   The applicant feels it is unfair that a service needs to be paid for with no guarantee that the respondent has an obligation to pay for a determined service in full.

   …

   3.The applicant contends that the correspondence from The Respondent to the applicant regarding the payment of these services was confusing and led the applicant to the belief that the reasonable cost of the tree maintenance would be reimbursed. As this was a one off service only allowed once per year in the determination the applicant believes this was a reasonable cost and equates to $30.76 per week which is within the allowable guidelines.

   4.The applicant is of the belief that the maximum rates payable for Household Services relates to the regular weekly or fortnightly provision of services and should not be applied to Specialist Services such as the Tree Maintenance which are only allowed on a once per year basis. It is unreasonable to suggest that this service can be carried out on a weekly or fortnightly schedule.

   5.The letter from Kerry Winters (T134) is contradictory in its information in that she states “any reasonable amount will be considered for Household help services” but then goes on to state that statutory rates are fixed by legislation. The applicant believes strongly that the cost of the Tree Services used was a reasonable amount and should not come under the maximum weekly amount category as they are only allowed once per year.

9. The Tribunal sympathises with the frustrations expressed above by the Applicant.  The use of the word “reasonable” in correspondence to him and his wife is indeed confusing – regardless of whether one has or doesn’t have legal training. 

10. The information provided to the Applicant in relation to what Comcare can and cannot reimburse in any given week and the links between section 29 of the SRC Act and the relevant “Statutory Benefit Rates” is less than clear.  It is noted, for example, that section 29 simply states:

    (i)Subject to subsection (5), where, as a result of an 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.

11. This section of the Act says nothing about the need to refer to the 2013-2014 Statutory Benefit Rates under the SRC Act.  The relevant table in that regard is only available on Comcare’s website at:

    file/0006/147588/2010-2014 Statutory benefit rates under the SRC Act.pdf.

12. It does not appear that this was explained to the Applicant until very late in the piece.  A lack of clarity and assistance in that regard is evident throughout these proceedings. 

13. Unfortunately for the Applicant the legislation and corresponding statutory tables are such that the Respondent’s overall contentions about weekly compensation limits are accurate.

14. In particular, a reading of the relevant table does reveal that in relation to 29(1) of the SRC Act and “household services” the maximum allowed for any given week is $442.40 during the relevant period.  While Comcare does look at what is “reasonable”, that word applies only to an analysis of what is reasonable within a capped legislative maximum.

15. Hence, although the Tribunal understands the incredible frustration experienced felt by the Applicant and his wife in relation to what was said to him and what he, quite rightly, thought this meant, there is nothing the Tribunal can do to assist the Applicant in this regard. 

16. Accordingly, the most the Applicant can claim for tree services during the week of 9 December 2014 is $442.40, as allowed by the relevant legislation.  The Tribunal has no discretion to alter this amount.

    CONCLUSION

17. For the reasons outlined above, the decision under review is varied. 

18. The Applicant is entitled to the costs of tree clearing services delivered during the week of 9 December 2014. 

19. The maximum amount to which the Applicant is entitled for the tree clearing services delivered in the week of 9 December 2014 is $442.40.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

............[sgd D Brodie]...........................

Administrative Assistant

Dated 17 June 2016

Date of hearing	2 June 2016
Representative of the Applicant	In person (unrepresented)
Representative of  the Respondent	Ms A Ladhams
Solicitors for the Respondent	Australian Government Solicitor