Giardina and Comcare (Compensation)

[2016] AATA 626

Giardina and Comcare (Compensation) [2016] AATA 626 (23 August 2016)

Division	GENERAL DIVISION
File Number(s)	2015/3006
Re	Paula Giardina
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr I Alexander, Member
Date	23 August 2016
Place	Sydney

The Tribunal decides that the reviewable decision, being the decision of the Respondent dated 28 April 2015 is set aside and remitted to Comcare for reassessment in accordance with the reasons of the Tribunal as set out in these reasons for decision.

A decision on the matter of costs is reserved. The parties have 14 days from the date of this decision to advise the Tribunal if they wish to make submissions. If they do not, the Tribunal will make an order pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.

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

Dr I Alexander, Member

CATCHWORDS

WORKERS COMPENSATION - compensable injury - household services applicant reasonably requires - number of hours of assistance reasonably required - whether reasonable to expect family members to provide the assistance - decision set aside and remitted

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 s 29

REASONS FOR DECISION

Dr I Alexander, Member

23 August 2016

BACKGROUND

1. Ms Giardina, who is now 52 years old, commenced work with the Australian Customs Service in 1980.

2. On 30 May 2004, Ms Giardina submitted a claim for Workers’ Compensation with the injury described as “(R) supraspinatus tendinitis facet joint dysfunction” caused by “constant stamping & forward movement".

3. In a decision dated 13 July 2004, Comcare accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) for an injury described as “aggravation of synovitis & tenosynovitis (right)”.

4. Since that time Ms Giardina has been receiving various compensation payments including, since 2005, compensation for household services pursuant to s 29 of the SRC Act.

5. On 2 December 2011 following an assessment by an Occupational Therapist, Comcare reduced Ms Giardina’s compensation for household services to three hours per week. 

6. In a report dated 15 September 2014 Dr Dowda, Occupational Physician, expressed the opinion that “two hours per week or a total of two to four hours per fortnight is reasonable…”.

7. In a Determination dated 13 February 2015 Comcare accepted claims for compensation payment of 3 hours per week until 12 February 2015.

8. In an additional Determination dated 13 February 2015, Comcare decided that compensation for household services was no longer required on the basis that these services could reasonably be provided by a family member.

9. On reconsideration, in a reviewable decision dated 28 April 2015 Comcare affirmed the earlier Determination that compensation payments for household services were no longer required.

10. In these proceedings Ms Giardina, who was represented by counsel, seeks review of the Comcare’s decision of 28 April 2015.

    ISSUES

11. Section 29(1) of the SRC Act provides that where, as a result of an injury to an employee, the employee obtains household services that he or she reasonable requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances.  

12. Sections 29(2) provides that there are no limitations on the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case but states that it shall have regard to the following:

    (a)       the extent to which household services were provided by the employee before the            date of 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) 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 employment or other activities of the      person’s referred to in paragraph (b).

13. Ms Giardina contends that, because of her compensable injury, she has no capacity to undertake strenuous household chores and requires assistance for household cleaning.

14. In particular, Ms Giardina is seeking payment for cleaning services provided by a professional cleaning service since February 2015 at a rate $135.00 per week. The weekly rate is based on 2 persons working for 2½ hours, that is, 5 hours per week.

15. Ms Giardina also contends that  her family members could not have provided the required assistance on the basis that it would have cause substantial disruption to their employment and other activities.

16. The Respondent accepts that Ms Giardina requires some assistance with household cleaning as a result of her injury but submits that the assistance should be limited to 1 hour per week.

17. The Respondent also submits that it was reasonable to expect her family to provide the required assistance for household cleaning.

18. Therefore, the relevant issues in this matter are:

    (i)        Did Ms Giardina, as a result of her injury, require assistance for household            cleaning since 13 February 2015?

    (ii)       If so, as a result of her injury, how many hours per week of household cleaning      assistance were reasonably required?

    (iii)      Is it reasonable to expect Ms Giardina’s family to provide this additional      assistance for household cleaning?

    DOES MS GIARDINA, AS A RESULT OF HER COPENSABLE INJURY, REQUIRE HOUSEHOLD CLEANING ASSISTANCE?

    Ms Giardina’s Evidence  

19. Ms Giardina told the Tribunal that her house, which was built 17 years ago, is quite large and has three levels. The top level has three bedrooms, two bathrooms, a kitchen, a dining area, a living area and four balconies. The middle level has an entry foyer, a study, a rumpus room with a billiard table, a laundry and a bathroom. The middle level also has a separate area for her elderly in-laws. This area has a separate entrance and has a kitchen, bathroom and two bedrooms. The lower level is a garage large enough for five cars. All the floors throughout the house, including the balconies, are covered with “travertine” tiles.   

20. Ms Giardina stated that prior to her work injury she did all the cleaning, washing, ironing and cooking. The cleaning included mopping, vacuuming, cleaning the bathrooms, hosing down the balconies and windows. She said she would vacuum and mop all the upper level floors once a week and sometimes the kitchen more often. She said that every week she would spend about five to six hours on a single day cleaning the house. She would spend about one hour on vacuuming and mopping the floors, one hour on dusting, up to one hour cleaning the bathrooms and about one hour doing the ironing. 

21. Ms Giardina stated that currently she is unable to vacuum or mop the floors, is unable to do any ironing, is unable to clean the shower recesses and mirrors in the bathroom, can only use her left hand to wipe bench tops in the kitchen and has difficulty with dusting. Ms Giardina explained that she has many ornaments of varying sizes and weights which need to be dusted every week and she can only use her left arm to pick them up and move them around. 

22. Ms Giardina stated that her elderly in-laws are fully independent and do not require any assistance with household activities. In fact, they often assist with taking out the washing and hanging it on the clothesline.

    Medical Evidence

23. In a report dated 15 September 2014 Dr Dowda, occupational physician, states, inter alia, the following:

    …The exacerbating factors for her are exertion an activity involving the right arm, particularly using the arm under load at or above shoulder level… She needs assistance with any physical activity that requires use of the arm strenuously particularly at or above shoulder level. Physical activities such as ironing (she is right handed dominant) scrubbing and cleaning bathrooms, mopping and vacuuming are all outside her physical capabilities…Thus, those types of household services are reasonable.

24. In a report dated 3 December 2014, Ms Matuschka, occupational therapist, states that:

    based on Ms Giardina’s report of independence in all domestic tasks prior to her injury and her assessed restrictions and functional capacity relating to her right upper limb strength and range of movement in her right shoulder it is considered that undertaking heavy domestic tasks is not within her safe physical capacity at the present time.

25. Ms Matuschka recommended that Ms Giardina use “self pacing techniques to modify her approach to daily domestic tasks such as sweeping the kitchen floor and wiping or dusting surfaces” and was encouraged to use light microfibre cloths or floor sweeper one room at a time.

26. In a report dated 23 October 2015 Dr McGill, rheumatologist, states, inter alia, the following:

    “This 51 year old lady provided a history consistent with right shoulder impingement….she is currently performing normal work duties and those duties do not involve any significant amount of above shoulder height activity…The documentation indicates that at times her symptoms were widespread and today she reported symptoms also in the neck, low back and to a lesser extent in her lower limbs. The more widespread symptoms reflect her proneness to experiencing and reporting widespread pain but are not related to her work. Her work duties have had no effect on the structure of her spine ...I think her condition remains related to her employment, specifically between 1982 and 2004. I think the provision of some household assistance is appropriate but given the relatively mild nature of her rotator cuff problems, I think her requirement only relates to activities that involve above shoulder height activity, that is where the elbow needs to reach above the shoulder level. She does not require a lifting restriction below shoulder height. [emphasis added]  

27. Just prior to the hearing Dr McGill and Dr Dowda were given an opportunity to discuss relevant issues in this matter and subsequently gave concurrent !evidence.

28. With respect to Ms Giardina’s compensable injury Dr Dowda stated, inter alia , the following:

    We concur that there is a mechanical problem with the right shoulder in terms of a rotator cuff disorder. Interestingly, in her presentation to Dr McGill a year after I saw her there were some other symptoms that were completely unrelated to the right shoulder condition that were noted at his examination and consultation but not relevant to the right rotator cuff. So, both of us concur that there’s a mechanical problem with the right shoulder which would be reasonably comfortable to call a right rotator cuff injury as an all-encompassing term for that and that that alone is the cause of limitation, of certain, I guess, non-occupational activities…Loading the right arm at or above shoulder level is the biggest issue that she’d face in terms of discomfort, limitation of the activity. So, bring the arm to above shoulder level , and particularly under load, but even no under load, it’s going to still be uncomfortable and difficult for her given the mechanic limitation ranges of movement.

29. With respect to the specific activities Ms Giardina claims cause her significant difficulty Dr McGill stated, inter alia, the following:

    We specifically discussed some of those activities, such as just sweeping and mopping, and dusting with a dustpan, rather than other sorts of dusting. Activities that do not require elevation of the elbow to above shoulder height are not activities that we would expect to be limited by her rotator cuff disease. Now, we did not say that she might not have limitation on the basis other aches and pains and we agreed that the symptom complex that she reported when I saw her was not all explicable on the basis of rotator cuff disease. We further noted the degree of pathology in her rotator cuff and agreed that although we both think that it should be accepted as work related, on the basis of the activities she performed at or above shoulder height over a number of years, nevertheless, the pathological findings in her rotator cuff, based on her MRI findings, are well within the accepted range for a lady in her age...We agree it’s well within what you’d expect for a lady of her age who had not an injury. So, to summarise my answer, there are activities such as mopping, sweeping and other activities, ironing, and other activities with the elbow below shoulder height that we do not think she requires assistance on the basis of her compensable injury.

30. Both doctors agreed that in cleaning bathrooms and kitchens that there can be some situations in which it would be necessary to elevate the elbow above shoulder height but wiping a kitchen bench from a standing position is not one of them.

    Consideration

31. Ms Giardina has been provided with household cleaning assistance for more than 10 years. She claims that she requires continuing assistance because of the injury to her right shoulder in 2004. She describes a severe impairment, in that, she appears to be unable to use her right arm for any cleaning activities at all.

32. On consideration of the medical evidence I am not persuaded that Ms Giardina’s currently claimed requirement for household cleaning assistance can be attributed to her compensable shoulder injury alone.

33. However, I am satisfied that the medical evidence supports a conclusion that, as a result her compensable injury, Ms Giardina does have a continuing restriction to certain activities which require elevation of the right elbow above shoulder height.

34. I am also satisfied that some aspects, but not all, of the household cleaning activities currently obtained by Ms Giardina would require elevation of the right elbow above shoulder height.

35. It follows that I am satisfied that a proportion of the household cleaning activities currently required by Ms Giardina can be attributed to her compensable injury.

    HOW MANY HOURS PER WEEK OF HOUSEHOLD CLEANING ASSISTANCE?

36. Ms Giardina told the Tribunal that since her compensation payments stopped she has been paying for two and a half hours each for two cleaners per week, that is, $135.00 for a total of five hours. Recently the rate has been increased to $150.00 per week. She stated that the cleaners mop and vacuum all the floors, clean the bathrooms, clean the kitchen appliances, dust the numerous ornaments and shelves and “wipe down the outside of the windows and doorframes” but do not do any ironing which is sent out.

37. I note that in her statement Ms Giardina’s daughter stated that she helps with the ironing “that the cleaner doesn’t always get to finish”.

38. In a Determination dated 2 December 2011 compensation payment for Household Domestic Services was reduced to 3 hours per week which continued until 13 February 2015, when payments were ceased.

39. In a report dated 17 August 2012, Mr De Paoli, occupational therapist, recommended 1 hour per week domestic assistance for cleaning bathrooms and floors but added that it was reasonable to “trial lightweight mop and bucket, lightweight vacuum and/or steam mop for use in living areas” which may allow for domestic assistance to be reduced.

40. In her report of 3 December 2014 Ms Matuschka noted that Ms Giardina reported that she receives paid assistance for three hours per week to complete cleaning of her house which includes “vacuuming, mopping dusting, cleaning bathrooms” as well assistance with ironing for about one hour per week. She expressed no opinion with respect to reasonable hours of assistance.

41. Dr Dowda in his report of 15 September 2014 states that “[g]iven the scrubbing and cleaning of the bathrooms, mopping, vacuuming and ironing are currently done on a fortnightly basis, with a couple of people spending two hours, it is likely that between two and four hours of household services every two weeks would not be unreasonable”.

42. Dr McGilll, in his report of 23 October 2015, notes that Ms Giardina avoids mopping and sweeping and “was receiving five hours of cleaning and ironing assistance each week provided by Comcare but that has ceased.” He also noted that “her husband and daughter now do all the cleaning”.

43. Dr McGill also notes that Ms Giardina has a large house and expressed the opinion that he would expect that the “above shoulder height activities to be reasonably performed within a two hour period each fortnight.”

44. At the hearing Dr McGill stated that both he and Dr Dowda agreed that determining a precise “number of hours” is outside their expertise and that they are best able to describe the sort of activities that would cause Ms Giardina some limitations. However, they did agree that they believed that about two hours per fortnight would be reasonable.

45. Dr Dowda said that at best it required an estimation of what “physical tasks might require assistance and how much” and on reflection with his personal domestic experience agreed that 2 hours per fortnight would be reasonable.  He emphasised, however, that a number of activities for which Ms Giardina “feels the need for assistance, and a number of her symptoms, cannot be related to rotator cuff disease”.

46. In response to questions from Ms Giardina’s counsel Dr Dowda explained why he had modified the opinion, which he had expressed in his earlier written report, with respect to the physical activities with which Ms Giardina had reported as having difficulties.

47. Dr Dowda conceded that he had  noted that Ms Giardina described “neck and shoulder pain in the right trapezius muscle, not related to the rotator cuff” but, at the time, but had not considered the possible effect of these symptoms on her reported limitations to her physical activities.  He stated, following detailed discussion with Dr McGill, that:

    It is reasonable to focus on the mechanical limitations set by the rotator cuff condition and I would say that there may be reasons for her not undertaking physical activities with the elbow below shoulder level but not because of her rotator cuff disorder, which we consider is work related.

    Consideration

48. The determination as to how many hours of cleaning assistance Ms Giardina reasonably requires, as a result of her compensable injury, is in my view problematic.

49. Counsel for Comcare submits that the opinions of Drs McGill and Dowda of 2 hours per fortnight or 1 hour per week should be preferred as there is no other competing medical evidence

50. Since the 13 February 2015 Ms Giardina has obtained household cleaning services for a total of five hours per week and claims that this requirement is based on the physical limitations caused by her compensable injury alone.

51. Prior to this date Comcare had approved payment for a total of three hours of household domestic services which appears to have included 1 hour per week for ironing. This would suggest that about only two hours per week of assistance for house cleaning had been considered reasonable.

52. Ms Giardina’s claim for 5 hours per week of household cleaning assistance appears to be based on the assessment by the cleaning company with respect to a level of service preferred by Ms Giardina.

53. On consideration of the evidence before the Tribunal, which is limited and somewhat inconsistent, I am not persuaded that Ms Giardina’s claim for 5 hours per week of household assistance is an accurate indication of the limitations of her capacity to undertake cleaning activities, because of her compensable injury.  The evidence suggests that some of her claimed limitations may be caused by other physical factors or a preference not to undertake particular activities.

54. The medical evidence suggests that Ms Giardina should be able to undertake some cleaning activities that do not require elevation of the right elbow above shoulder height.

1. The Tribunal has not been provided with an independent observational assessment of the proportion of the five hours that cleaning activities, that are being performed, require elevation of the right elbow above shoulder height. Therefore, a precise time cannot be established.

2. I note, however, that in August 2012 an independent assessment by an occupational therapist recommended 1 hour per week domestic assistance for cleaning bathrooms. This recommendation is consistent with the suggestions made by Drs Dowda and McGill in their oral evidence.

3. Therefore, notwithstanding the noted difficulties, I am satisfied that one hour per week of assistance for cleaning activities would be a reasonable estimate.  

   CAN MRS GIARDINA’S FAMILY MEMBERS REASONABLY BE EXPECTED TO ASSIST ?

4. In a written statement dated 14 October 2015 Ms Giardina’s husband states that he is a Fleet Manager with Qantas and also drives a hire care on Saturdays for weddings.

5. Ms Giardina’s husband provides a summary of his activities as follows:

   ·Monday to Friday: leaves home at 7.30am and arrives home at 6.30pm;

   ·Saturday: drives from 12 noon to 7.30 pm, morning spent washing the car and putting ribbons on the car for weddings;

   ·Gym: three to four times per week usually in the evenings after dinner. 

6. Ms Giardina’s husband states that he also mows the lawn, undertakes general maintenance, cleans the pool and tries to help with some of the heavier cleaning and cooking.

7. In a handwritten note dated 24 February, Ms Giardina’s son provides a summary of his employment and other activities as follows:

   ·Employment including travel time – Monday – Friday: 7am -6pm, Saturday: 8am -1pm;

   ·Sport – soccer training Tuesday and Thursday after work returning home at 9pm m, Saturday match after work returning home at 6pm;

   ·Leisure- Saturday night going out and staying at girlfriend’s overnight and returning home on Sunday afternoon.

8. Ms Giardina’s son also noted that he contributed to household chores by keeping his room clean, sometimes helping with washing the bathroom and helping with maintenance of the house outdoors.

9. In a written statement dated 4 October 2015 Ms Giardina’s son states that he moved out of the family home.

10. At the hearing Ms Giardina stated her son had recently moved back into the family home on a temporary basis.

11. In a written statement dated 14 October 2015 Ms Giardina’s daughter states she is currently at the beginning of Year 12 in High School and studying for the Higher School Certificate.

12. She summarises her activities as follows:

    ·leaves for school at 7.30 am- returns home at 4.30pm

    ·on days with no sport study till 7-7.30pm

    ·on Saturday work at a grocery store 9am-3pm

    ·additional sport – Friday indoor soccer till 6.30pm, Tuesday touch football till 6.30pm, in winter outdoor soccer on Sunday and train 2 night per week for 1.5 hours

13. Ms Giardina’s daughter also states that she cleans her bedroom, helps with ironing “that the cleaner doesn’t always get to finish” and helps with the cooking.  

    Consideration

14. I am satisfied that the evidence before the Tribunal clearly demonstrates that Ms Giardina’s family lead very busy lives with significant work, school and sporting commitments.

15. The evidence also indicates that Mr Giardina’s family, particularly her husband, do provide significant support for general household activities.

16. Comcare submits that it would be reasonable to expect Ms Giardina’s family to provide the additional one hour per week of cleaning activities

17. The provision of an extra hour of assistance per week by family members would, in many circumstances, not be seen as unreasonable.

18. In Ms Giardina’s circumstances, the one hour per week represents an estimated proportion of all the cleaning activities where part of the activity may require elevation of the arm above shoulder height. It does not indicate a discreet activity or set of activities. Therefore, in my view, it would be inefficient and impractical to expect a family member to undertake the various limited elements of particular cleaning activities at another time.

19. Therefore, I am satisfied that it would not be reasonable to expect the family to provide the estimated one hour per week for cleaning involving elevation of the arm above shoulder height.

20. It follows, that I am satisfied that it is reasonable for Comcare to pay for one hour per week for household cleaning services. 

    DECISION

21. For reasons set out about above I am satisfied that, that pursuant to s 29 of the Act, it is reasonable for Comcare to pay Ms Giardina an amount equivalent to one hour per week for the cleaning services that she has obtained since 13 February 2015.

22. The reviewable decision dated 28 April 2015 is set aside and remitted to Comcare for reassessment in accordance with the reasons of the Tribunal as set out above.

23. A decision on the matter of costs is reserved. The parties have 14 days from the date of this decision to advise the Tribunal if they wish to make submissions. If they do not, the Tribunal will make an order pursuant to section 67(8) of the Act.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

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

Associate

Dated 23 August 2016

Date(s) of hearing	11 July 2016
Counsel for the Applicant	R Ternes
Solicitors for the Applicant	Shine Lawyers
Counsel for the Respondent	R Henderson
Solicitors for the Respondent	Lehmann Snell Lawyers