Hamblin and Comcare (Compensation)
[2018] AATA 4451
•28 November 2018
Hamblin and Comcare (Compensation) [2018] AATA 4451 (28 November 2018)
Division:GENERAL DIVISION
File Number(s): 2017/4498
Re:Janet Hamblin
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Ms Anna Burke, Member
Date:28 November 2018
Place:Melbourne
The Tribunal sets aside the decision under review and in substitution decides that Mrs Hamblin should be entitled to one-and-a-half hours of cleaning services, once per fortnight from the date of this determination, to be reviewed in in one year.
[sgd]........................................................................
Ms Anna Burke, Member
Catchwords
COMPENSATION – household services – mobility – cleaning – accepted condition – partner with an accepted condition – reduced household services – ceased household services – whether entitled to household services - aggravation of recurrent disc prolapse – lower back injury – reasonable standard of home maintenance - decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Secondary Materials
Clinical Framework for the Delivery of Health Services (Clinical Framework)
REASONS FOR DECISION
Ms Anna Burke, Member
28 November 2018
Mrs Janet Hamblin (the Applicant) is seeking review of a decision by Comcare (the Respondent) made pursuant to s 62 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The decision affirmed an earlier determination reducing and then ceasing household services provided to the Applicant pursuant to s 29 of the SRC Act.
Mrs Hamblin was employed by the Commonwealth Government in the Department of Defence, the Australian Taxation Office and Centrelink, in various administrative positions, retiring on invalidity grounds on 22 December 2004. Mrs Hamblin has a long history of injury and associated Comcare claims. In March 1995 she exacerbated an original back injury and has an accepted claim for aggravation of recurrent disc prolapse at L5/S1 level. In 1998 Mrs Hamblin underwent surgery for disc fusion which was complicated by postsurgical infection.
On 20 April 2012 Ms Susan Adamson, occupational therapist, undertook an assessment of Mrs Hamblin to determine the appropriateness and clinical need for an electric scooter. In her report Ms Adamson noted that: Ms Hamblin may benefit from a graded return to activity programme aimed at increasing her endurance, functional capacity and mobility. It appears Ms Hamblin is not attempting any form of activity program which may impact on her current reduced mobility. The provision of a scooter may contribute further to client’s reduced level of function.
On 8 November 2012 Ms Carolyn Price, registered psychiatric nurse, in a letter to Comcare supporting Mrs Hamblin’s obtaining a mobility scooter opined:
As you would be aware she was terribly distressed by the assessment of an Occupational Therapist and the manner in which both she and her husband had been treated.
She is constantly frustrated by the lack of independence she has and significantly worries about the stress she places on her husband to provide her with transport for all needs outside of their unit.
I feel if she had more independence this would improve her self-esteem and confidence, thus resulting in a reduction in depressive symptoms and ongoing stress. These issues need to be looked at from long-term outcomes and if addressed earlier will more than likely result in positive results for Janet’s mental health.
On 30 January 2013 Ms Nicole Ronci, occupational therapist with CRS Australia, provided Comcare with a household assessment report for Mrs Hamblin. In the report she provided a detailed history of Mrs Hamblin’s injuries, their impact on her functionality, additional details of her household circumstances and members of her household. In her report she noted, as summarised below:
Ms Hamblin reported sustaining a lower back injury in 1993 whilst assisting colleagues outside of her usual work hours, whilst employed with the Department of Defence. She reported this injury resolved.
Ms Hamblin indicated that whilst working for the Australian Taxation Office in 1994 she fell when exiting a lift. Mrs Hamblin stated that the lift had not been level with the floor and when exiting tripped on the lip between the lift and the stopping floor.
Ms Hamblin stated that she underwent multiple surgical interventions to assist in the management of her injury.
Ms Hamblin report in approximately 2004 whilst working for Centrelink, she was transferring out of her car when her legs gave way and she fell to the ground and subsequently caused further injury to her back.
Diagnosis disc prolapse L5-S1.
Ms Hamblin reported that she has been unable to return to work, full-time capacity since 2005.
Ms Hamblin stated she is required to attend a doctor’s appointment to be assessed and receive a certificate of capacity in the coming weeks.
Ms Hamblin reported her treatment as remedial massage once a fortnight and undertook a daily exercise program prescribed by exercise physiologist.
Ms Hamblin described her current symptoms as constant pain in low back and constant ache radiating down left leg. Additionally she stated she suffered from sleep apnoea, depressive symptoms, constant pain in right knee and difficulty ambulating independently
Ms Hamblin had the following surgical procedures
·a discectomy at the end of 1994 stating this was successful and symptoms resolved for a year.
·Spinal fusion in 1998 stating that following the spinal fusion, she contracted an infection in her wound and had a hospital stay of 3 months
·removal of pins approximately 2003 reporting that she underwent surgery to remove displaced pins in her spine
·a right knee replacement procedure was scheduled to be completed in the coming weeks.
Ms Hamblin indicated that she suffered from other non-compensable medical disorders of type II diabetes, right knee condition and depressive disorder.
Ms Hamblin and her husband live in a single story home in Portland consisting of three bedrooms, one bathroom, a separate toilet, two living areas, a kitchen dining area, lounge and laundry facilities. The home was observed as generally well kept however general maintenance and upkeep of the house appeared to have been neglected.
Ms Hamblin has 3 mature age children and her husband (Robert) has 4 mature age children, they have no dependent children and none of the children live in Portland or nearby towns. At the time of assessment Ms Hamblin sister-in-law was visiting from Sydney and was providing assistance with domestic chores including cooking cleaning and laundry, she had subsequently returned to Sydney.
Ms Hamblin stated that Robert is her primary carer and he provides assistance with self-care tasks including washing, drying and dressing of lower body. She stated that Robert manages a majority of the domestic chores including cleaning, shopping, cooking, laundry and manages the outdoor area. Robert provides Ms Hamblin with all forms of transport.
It was noted at the time of assessment that Robert was ambulating with a limp and had a low sitting tolerance. It was reported that Robert has a compensable back injury, and has recently undergone a nerve block procedure. Ms Hamblin and Robert stated that since Roberts’s exacerbation of symptoms, he has been unable to maintain the household and is struggling to attend to the needs of Ms Hamblin.
Ms Hamblin reported that she is required to use 2x single point stick to mobilise throughout the home. She stated that prior to her right knee condition worsening she was using one single point walking stick. Ms Hamblin reported that she utilises a walking frame outside the home. She stated that she cannot walk far before needing to stop and sit down due to back pain radiating down her left leg. Ms Hamblin was observed using 2x single point sticks for mobility within the home. It was noted that she was walking with a limp
Ms Hamblin reported that she can only sit for short periods. She stated that sitting in the armchair in the lounge is most comfortable and in this chair she can sit for up to 20 to 30 minutes before having to readjust her position. Ms Hamblin reported that she can only stand for 2 minutes before causing exacerbation of pain. She stated that this restricts her from completing task including cooking and making showering difficult.
Ms Hamblin stated that prior to a knee condition she was able to walk short distance, however was required to take frequent short breaks due to back pain and left leg pain symptoms. Since her knee condition Ms Hamblin advised that her walking tolerance has decreased and she is unable to walk for 5 minutes without exacerbating pain symptoms.
Ms Hamblin stated she is unsure of her lifting capacity, although she avoids any heavy lifting.
Ms Hamblin reported difficulty transferring, she cannot squat, kneel, bend or twist, that as a result of some of her medication she finds herself feeling tired and sleepy, she cannot complete task that require overhead activities reaching. She stated she is restricted with completion of many of her domestic, personal and leisurely ADL’s due to her physical restrictions.
On 1 February 2013 Comcare determined that Mrs Hamblin was entitled to household services in accordance with s 29 of the SRC Act, based upon the Ms Ronci’s report. The determination provided:
·Household cleaning services for initial clean-up 4 hours (one off)
·Household cleaning services ongoing 2 hours per fortnight up to and including 31 January 2014
·Gardening services for 2 hours per fortnight (October - March) and 2 hours per month (April - September) up to and including 31 January 2014
In letters dated 30 January 2014, 22 January 2015, 18 February 2016 and 8 June 2016 Comcare continued to accept liability for compensation for household cleaning and gardening services.
On 11 May 2017 Mrs Hamblin submitted an application for household care as she had recently moved house. The application was co-signed by Dr Daryl Pedler, general practitioner at Active Health in Portland. It stated: Due to her original injury – & the complication of treatment, Jan is unable to bend to undertake these activities or to twist her back (which has been surgically fused)… This will be a continuing requirement at (at least) the current time fraction.
On 16 June 2017 Ms Adamson, the occupational therapist who had performed an assessment of the Applicant in 2012, completed a review of Mrs Hamblin’s ongoing need for home help and gardening services at the request of Comcare. Ms Adamson’s report stated:
Mrs Hamblin sustained a lower back injury after a fall at work in 1995 when she was working at Centrelink. The Comcare letter of referral dated 23 May 2017 lists her condition as ‘temporary aggravation of recurrent L5/S1 disc prolapse.’ She stated she has experience chronic pain for 20 years.
Ms Hamblin previously worked for the Department of Defence, the Taxation Office and then Centrelink. She stated she sustained a previous back injury 1994 resulting in discectomy surgery. She then fell out of a lift in 1995 which exacerbated her original back injury requiring further surgery (fusion) and subsequent difficulties relating to infection and scarring. She is no longer working.
As you know, Mrs Hamblin and her husband Robert recently moved from one rental property to another in Portland. Both properties are similar in terms of house size, number of bedrooms and garden setup. She is currently receiving 2 hours of HH per fortnight and 2 hrs of gardening per fortnight (or month) depending on the season.
I have reviewed previous OT assessments dated 20/4/2012 and 30/1/2013 and note Mrs Hamblin’s functional capacity is similar to previous assessments. She continues to undertake light cleaning duties around the house and is unable to manage heavy cleaning tasks including vacuuming, cleaning shower and scrubbing toilet.
In keeping with community standards, it is usual to establish if any other members of the household can complete cleaning tasks. Given that Mrs Hamblin lives with her husband (who receives a carer’s pension to care for her), it seems reasonable for him to undertake these duties in order to contribute to the running of the household. I note Mr Hamblin advised he is unable to complete heavy tasks due to sciatica. However, I am not aware of any recent medical reports confirming this. Despite such a diagnosis, it is likely Mr Hamblin would be able to complete household cleaning duties using strategies to pace the task and possibly use assistive equipment.
Mrs Hamblin mobilises independently around the house and with a single point stick outdoors. She is able to drive and her husband also assists with transport. She was provided with an electric scooter in 2013 following recommendations in a previous ADL assessment conducted by CRS. These recommendations were contrary to those made by myself 12 months earlier in report dated 20/4/2012.
Given Mrs Hamblin is able to mobilise using a single point stick and drive a car, I remain unconvinced of the need for a scooter. In my opinion, maintaining mobility and physical activity is key to managing chronic pain.
The following is recommended:
·encourage the worker to continue with light cleaning duties on a daily basis
·Reduce household services to 1 hr per fortnight for 3 months and then cease services in keeping with community standards and expectation that other household members contribute to housework.
·Maintain gardening service as per current approval for 6 months and set expectations with worker services will then be reviewed.
·Consider reasonableness of $900 to service electronic scooter and establish ongoing liability for such costs given scooter is not considered to be required at this stage.
Please note, both Mr and Mrs Hamblin express their dissatisfaction when advised of the above recommendations. Mrs Hamblin appeared to be tearful and stated she had previously considered taking her life. A message has been left with the treating GP to convey these concerns.
On 19 June 2017 Comcare advised Mrs Hamblin that her household services had been reduced in accordance with Ms Adamson’s advice and would cease from 20 September 2017.
On 22 June 2017 Mrs Hamblin sought a review by the Comcare Review Officer of the determination to reduce and then cease her household cleaning and gardening services. She stated:
For the last several years I have been allotted two hours per fortnight of cleaning assistance. This has been reduced to two hours per month. As I am physically unable to do the activities that the contractor does I am upset that it seems my bathroom and toilet only need cleaning once a month and vacuuming and mopping the same. I found once a fortnight was barely acceptable but monthly is not even sanitary.
The grounds of my appeal are as listed:
1.My condition has been assessed but both my treating physician and the Commonwealth doctors as permanent and degenerative. I am of the understanding the current legislation does not recognise “permanent” and my condition and circumstances need to be reassessed every 12 months. This in itself is not a problem but I find it frustrating and depressing. It took me a long time to actually accept that I am not going to get better but eventually after trying to do things and make my pain worse I have accepted that I can no longer do the things I used to find easy, therefore need some help. I can now only try to keep the pain at a level where I can deal with it. The assistance with my cleaning does this and means I no longer have to be in crippling pain. Ms Adamson did not seem to understand this concept but also did not appear to try and get an opinion from a medical practitioner until after the report was furnished to you. This is evidenced by the fact your decision was sent to me dated 19/06/2017 but she did not speak to my treating physician until the 20/06/2017.
2.I was advised by you that the assessment was being done because I had moved house and may need to be adjusted. I have moved to another house because my previous house had been put up for sale. My new accommodation is still a 3 bedroom house and is actually a little bit larger than the last one, all my other circumstances have not changed so I did expect the assessment to be at least the same as before and do not understand why it has been reduced. It also seems to me that you intend to look at ceasing entirely my assistance which I find very upsetting.
On 21 July 2017 the Comcare Review Officer affirmed the determination of 19 June 2017. The Review Officer stated:
Occupational therapist, Nicole Ronci stated in her report dated 30 January 2013, that you require two hours of cleaning services per fortnight and up to two hours per fortnight of gardening services as you are no longer able to complete these tasks, due to your compensable injury. Ms Ronci also states that your husband was managing the domestic cleaning, however he recently had an exacerbation of his back condition and can no longer manage the tasks.
An activities of Daily Living assessment was conducted with occupational therapist, Ms Susan Adamson who in her report dated 16 June 2017, recommended that you self pace light cleaning duties on a daily basis with the assistance of your husband for one hour per fortnight, for three months, and then cease services in keeping with community standards and expectations.
On 1 August 2017 Mrs Hamblin applied to the Administrative Appeals Tribunal (AAT) for review of the determination. She said:
I believe the decision made was incorrect and based on a report by Ms Susan Adamson. Her report did not taking into consideration her conversation with my treating doctor. I note the decision was made on the 19/6/2017 but she spoke to my treating doctor on 20/6/2017 so this could not possibly have been taken into consideration. I appealed the decision to the review officer who upheld the original decision and this is the only step I can make. I don’t understand how the household assistance can be reduced. I have been given two hours per fortnight for cleaning and also help with the gardening. My condition is degenerative and will only worsen with time therefore I believe I should receive at least the same amount of assistance. The basis of the report seems to indicate that my husband can do the jobs that I am unable to do but in fact he also has a compensable injury which is worsening and he also cannot complete these tasks. I did point this out to Ms Adamson but it seems she failed to consider this.
The application was heard on 31 October 2018. At the hearing Mrs Hamblin was self-represented. Comcare was represented by Mr Ray Ternes of counsel, instructed by Mr Lazarus Dobelsky of Moray & Agnew Lawyers. The Tribunal was provided with documentation pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-Documents and Supplementary T-Documents) and the Applicant tendered several medical reports. Mrs and Mr Hamblin, Ms Susan Adamson the occupational therapist and Dr Ann Dunbar, general practitioner gave oral evidence at the hearing.
Comcare had reinstated Mrs Hamblin’s entitlement to gardening services prior to the hearing, based on an additional home assessment report undertaken by Ms Adamson on 3 March 2018. The report accepted that Mrs Hamblin was unable to perform lawn mowing because of her compensable condition and that her husband’s back condition restricted his ability to undertake lawn mowing. As a result, the matter before the Tribunal was confined to the provision of household cleaning.
THE ISSUE
The Tribunal needs to determine if Mrs Hamblin is entitled to household services in accordance with s 29 of the SRC Act.
LEGISLATION
Section 14(1) of the SRC Act provides that subject to the balance of Part II of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Relevantly s 29 of the SRC Act states Comcare will provide compensation for household services and attendant care services for employees who have sustained a compensable injury:
(1) Subject to subsection (5), where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which 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).
(3) Where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of:
(a) $200 per week; or
(b) an amount per week equal to the amount per week paid or payable by the employee for those services;
whichever is less.
(4) Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the nature of the employee's injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;
(b) the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care;
(c) the extent to which it is reasonable to meet any wish by the employee to live outside an institution;
(d) the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
(e) any assessment made in relation to the rehabilitation of the employee;
(f) the extent to which a relative of the employee might reasonably be expected to provide attendant care services.
Note: In relation to paragraph (4)(f), see also subsection 4(2).
(5) Comcare is not liable to pay compensation under subsection (1) in respect of any week within the period of 28 days beginning on the date of the injury unless Comcare determines otherwise in a particular case on the ground of financial hardship or the need to provide for adequate supervision of dependent children.
(6) An amount of compensation payable by Comcare under subsection (1) or (3) is payable:
(a) where the employee has paid for the household services or attendant care services, as the case may be--to the employee; or
(b) in any other case--to the person who provided those services.
(7) Where Comcare pays an amount to a person who provided household services or attendant care services to an employee, the payment of the amount is, to the extent of the payment, a discharge of the liability of the employee to pay for those services.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
Mrs Hamblin
Mrs Hamblin advised the Tribunal that she simply could not understand why provision of household services had ceased. She said that she had been assessed in 2013 as requiring two hours per fortnight of housecleaning services based on her compensable injury and her husband’s ability to assist with household duties. She was at a loss to understand why help had ceased as her condition has continued to deteriorate. She stressed that her condition was degenerative despite her belief it was being deemed temporary by Comcare. She stressed that she had a permanent condition for which she had been pensioned out of Centrelink; and that her general practitioner agreed that both she and her husband needed assistance in undertaking household duties.
Mrs Hamblin advised the Tribunal that she was not seeking more than two hours per fortnight of household cleaning.
Under cross-examination Mrs Hamblin said that:
(a)She was unable to perform many tasks around the house except for a bit of light dusting, drying dishes and ironing in a sitting position.
(b)Her husband is her full-time carer who assists her with all daily living activities; and he performed all household duties including cooking, cleaning and washing.
(c)Since Comcare had ceased the provision of household services in September 2017 she and her husband had struggled to maintain the household.
(d)She was fundamentally incapable of doing any cleaning; and her husband had struggled greatly, since the provision of cleaning services ceased in September 2017, to vacuum, sweep, mop floors, and clean the bathrooms and toilets because of his sciatic condition; and
(e)The household had been cleaned regularly and to a high standard prior to September 2017 but now her husband only cleaned when the state of the house was too much to bear.
Mrs Hamblin said that there were no other family members in Portland who would assist with household duties. They were no longer on speaking terms with Mr Hamblin’s sisters who lived nearby and her daughter who lived nearby with her own health issues.
Mrs Hamblin said that prior to her injury she had undertaken all household duties as she was a single parent at the time. Since marrying Robert Hamblin, which occurred after her injury, they had shared the household chores until she could no longer assist.
Mrs Hamblin said that she undertook numerous activities such as reading, painting, cross-stitching, and occasionally taking the dog for a walk. She is an active bowler being captain of the local bowls club. Currently, she bowled twice a week in winter and up to four times in summer, during the bowling season. She reported that she utilised what is known as a bowling arm when bowling.
Mrs Hamblin advised the Tribunal that she had been unhappy with Ms Adamson’s approach to her assessment; particularly her second visit to their home which she undertook without prior notice.
Mr Hamblin
Mr Hamblin said that since Comcare had ceased providing household services in September 2017 he has been intermittently cleaning the house when it needed to be done and his wife fundamentally cannot undertake any activities. He varies what he does when it needs doing, based on when the house gets dirty, which was approximately once a month. He is in considerable pain when performing household tasks and has to rest for several hours after he has undertaken any chores.
Mr Hamblin said that he is suffering from sciatica down the right leg, describing his pain as intermittent. Additionally, he has issues with his shoulders and recently underwent an injection in the joint to help with the pain. He said some days are good, some days are bad and that he has difficulty bending, twisting and walking. Mr Hamblin stated it even hurts to stand to chop the vegetables for dinner, and that his pain varied in intensity.
Mr Hamblin stated that when he is vacuuming he is unable to move the furniture to get behind the couch and chairs. He cannot raise the vacuum above his head so he is unable to vacuum the top of the pelmets and curtains. He advised the Tribunal that their cleaner had undertaken such tasks as moving furniture, vacuuming and dusting above head height. Mr Hamilton said that he had purchased a Dyson cleaner and it’s an exceptionally serviceable cleaner and could see no need to purchase another. He had purchased a steam mop as he believed it may assist in undertaking household chores and cause less pain but that he had not found it to be of any benefit.
Mr Hamblin explained that he had injured his back working as a civilian in the Department of Defence and had received Comcare payments which have subsequently ceased.
Mr Hamblin said that he had not been fishing for about two and a half years. He had not taken out the boat for some time. He said that he last took out the trailer camper to attend the Lions Convention in Warrnambool, which he thought was about a year ago. He explained that he had been greatly assisted by fellow Lions in setting up and packing down the trailer and he had hurt himself hitching the camper up to the car. He further advised that the last time he and his wife had been camping was at least eight years ago. He explained to the Tribunal that he had taken his wife on the trip as medical advice had suggested that her condition would deteriorate and she would not be able to participate in such activities in the future.
Mr Hamblin advised the Tribunal that he was an active bowler and that he currently utilises what is referred to as a bowling arm. Mr Hamblin said that he was no longer in the full-time workforce but he did not have enough hours in the day to get everything he needed done.
Mr Hamblin disputed Ms Adamson’s second report of 9 February 2018 in which she found he did not demonstrate physical incapacity during assessment and was, in fact, unpacking boxes after recently moving house. Mr Hamblin stated he was unpacking boxes in the bedroom that day, that the boxes had been placed on his bed by his grandson so he was not required to bend down into them and that Ms Adamson could not have seen him unpacking boxes as she had only been present in the lounge room.
Ms Susan Adamson, Registered Occupational Therapist
Ms Adamson reiterated the contentions found in her report of 16 June 2017 and 9 February 2018. Ms Adamson stated that it was in Mr and Mrs Hamilton’s best interest to undertake some household duties as evidence supports that undertaking activity helps maintain strength and mobility. Additionally, research has also demonstrated maintaining day-to-day tasks and general activity has a positive impact on symptoms of depression.
She asserted that community standards provided the provision of cleaning services were generally one and a half hours a fortnight and it was usual to assume that other members of the household would contribute to the running of the household.
Ms Adamson did not believe Mr Hamblin’s physical incapacity was as restrictive as he maintained and reiterated he had demonstrated physical capacity during her visit as he was in fact unpacking boxes at the time.
Additionally, Ms Adamson reported that she had observed that Mrs Hamblin was able to ambulate around her home unaided as she had observed when she attended unannounced on her second visit.
Ms Adamson continue to be of the view that Mrs Hamblin would benefit from undertaking light household duties and Mr Hamblin was capable of undertaking the rest of the household cleaning duties if he adopted certain strategies and utilised assistive equipment. She stated such strategies could be:
·breaking tasks up in order to complete 10 to 15 minutes per day
·vacuuming one room only per day take regular rest bakes when completing tasks plan and set up task before commencing
·ensuring all equipment is available and within easy reach
·store cleaning items in accessible locations
·avoid bending and twisting
·ensure Mr Hamblin is using appropriate manual handling techniques he is maintaining appropriate posture
·adopting equipment such as lightweight vacuum cleaner, long handed toilet cleaner, swivel mop and lightweight bucket and long handled duster
Dr Ann Dunbar, General Practitioner
Dr Dunbar’s clinical notes dated 20 June 2017 were tendered during the hearing. She records:
will need report for Comm care they will be contacting us generally manges quite well but cannot vacuum because repetative movement of arm is too painful currently getting 2 hours a fortnight for housework and 2 hours a fortnight for the garden summer and 2hours a month in winter. Bob unable to help because he has probles too tenosynovitis of hand/finger ring finger left hand for injection long discussion about the problem she has around house Com care is querying Sue Adamson OT rang suggesting that they are getting too much help at home and that they could manage more themselves Thinks that Bob could do more that he was unpacking boxes and so could do the housework said i would be happy to write a report should Com Care request it.
Dr Dunbar had written a report dated 14 September 2017, in which she opines:
Rob has severe back pain with sciatica which was the subject of a previous Comcare claim. There seems little that can be done to remedy the situation or improve mobility and function.
Currently Rob has great difficulty in bending and kneeling.
It has been suggested that Rob could provide more assistance to his wife for household duties but his ability to do this is severely limited.
Dr Dunbar told the Tribunal she had been Mr and Mrs Hamblin’s general practitioner for about four years. She said that Mr and Mrs Hamblin were both suffering from back pain and that it was not improving, additionally because of the ageing process meant that it is getting worse and unlikely to improve. She opined that Mr Hamblin’s current pain, which she described as sciatica, shoulder pain and right knee pain, meant that he is not able to do any heavy housework,. Mr Hamblin’s lower back was the biggest problem, with a long-standing sciatica complaint.
Dr Dunbar agreed that, as a general principle, it was good to keep people doing things such as housework to increase mobility and independence; but this must be within a person’s limits. She did not believe that it was in Mr Hamilton’s best interest to undertake household tasks as these will simply aggravate his pain, making the situation worse. Dr Dunbar stated that vacuuming was very hard work and she was adamant that household work, in particular vacuuming, was extremely strenuous as it involved bending and twisting. Dr Dunbar argued strongly that for a house to be truly clean it should be vacuumed daily and indeed that was her personal practice.
Consideration
Mrs Hamblin advised the Tribunal that, fundamentally, it was unreasonable to expect herself or her husband to perform household services for themselves as they were both physically incapable as a result of workplace injuries.
Mrs Hamblin could not comprehend how Comcare had determined to discontinue support for household services as her and her husband’s conditions were not improving but deteriorating. She argued that both she and her husband were incapable of performing the bulk of strenuous household services and that her entitlement was reasonably required and should be reinstated.
Mrs Hamblin disputed Ms Adamson’s report on several grounds, but particularly as it was not informed by consideration of the treating doctor’s input, specifically Dr Dunbar’s medical opinion of Mr Hamblin’s ability to perform household tasks. Ms Adamson’s report had been provided to Comcare prior to speaking with Dr Dunbar.
Mr Ternes accepted that Mrs Hamblin was unable to undertake the majority of household tasks for which she had claimed.
Mr Ternes contended particularly and succinctly that Mrs Hamblin was capable of undertaking light household cleaning duties and that her husband Mr Hamblin was capable of undertaking the balance of the household cleaning duties based on the assessment of Ms Adamson.
Mr Ternes argued the Tribunal should rely upon Ms Adamson’s report, as it was independent, had regard to community standards, and addressed both the physical and the psychological benefits of engaging in activities of daily living for Mr and Mrs Hamblin.
Mr Ternes further argued that the Tribunal should discount the evidence of Dr Dunbar as she was not independent, was advocating for her patients, had fixed views about Mr and Mrs Hamblin’s capabilities, and had distinctly fixed views about what was reasonably required to maintain household cleanliness.
Findings
The Tribunal finds that Mrs Hamblin is suffering from a compensable injury that has resulted in her incapacity to perform household services and that she reasonably requires assistance in accordance with s 29(1) of the SRC Act.
The Tribunal finds that in accordance with s29(2)(a) of the SRC Act (a matter Comcare may take into account in determining the house household services are reasonable required) Mrs Hamblin had provided all reasonable household services for herself and her family prior to her injury.
The Tribunal finds that in accordance with s29(2)(d) of the SRC Act (a matter Comcare may take into account in determining the household services that are reasonably required) Mrs Hamblin lives with her husband and in accordance with community standards it would be reasonably expected that a husband should be able to undertake household services. Mr Hamblin is Mrs Hamblin’s full-time carer and provides the majority of his wife’s day-to-day care for which he receives a Centrelink benefit.
The Tribunal finds that Mr Hamblin is suffering from lumbar pain as revealed by an x-ray of 20 October 2017, which found: there are severe OA of changes the lower lumbar facet joints particularly L4/5 and L5/S1. There are milder degenerative changes in the rest of the lumbar and thoracic spine but with prominent anterior and right lateral osteophyte formation in the lower thoracic spine suggesting underlying diffuse idiopathic skeletal hyperostosis. As such he would be unable to perform strenuous housework required to maintain their home to a reasonable standard.
The Tribunal concurs with Ms Adamson’s conclusion that both Mr and Mrs Hamblin would benefit from undertaking activities in the home in order to maintain physical conditioning which results in improved strength, better health, greater independence and pain reduction. Additionally, the Tribunal accepts Ms Adamson’s opinion that Mrs Hamblin would benefit from performing day-to-day tasks and general activity to positively improve upon her symptoms of depression. This became evident to the Tribunal when Mrs Hamblin became very emotional about the impact the loss of household services was having upon her and her husband.
In addition to Ms Adamson’s report, the Tribunal was also informed by the Clinical Framework for the Delivery of Health Services (Clinical Framework) created by the Transport Accident Commission and WorkSafe Victoria and adopted by Comcare. Principle Three of the Clinical Framework stresses the need to empower the injured person to manage their injury:
Key messages
1 Empowering the injured person to manage their injury is a key treatment strategy and should be incorporated in all phases of injury management.
2 The main ways to empower an injured person are education, setting expectations, developing self-management strategies and promoting independence from treatment.
3 Healthcare professionals need to empower an injured person to actively participate in activities at home, work and in the community as part of their rehabilitation.
Education and setting expectations
Education, setting expectations and actively involving the injured person in their treatment is an important component of effective rehabilitation. The injured person is empowered when they:
- are educated about the:
- respective roles of the injured person and the healthcare professional
- nature of their injury, expected recovery timeframes and prognosis
- importance of actively participating in activities at home, work and the community as part of rehabilitation
- risks of prolonged inactivity
- risks and benefits of the treatment proposed
- develop collaborative treatment goals and timeframes to achieve these goals with their healthcare professional
- have appropriate and effective self-management strategies (including the management of relapses)
- have a healthcare professional that does not encourage or reinforce dependence and instead supports independence from treatment when appropriate
- learn to manage their condition as independently as possible
For children or people with severe injuries, it is also important that healthcare professionals empower carers and family members to support the injured person to be as independent as possible.
Setting expectations about discharge from treatment should commence early in the treatment phase. While it may be difficult to know exactly how long it will take to achieve an optimal recovery, it is important to inform the injured person that when recovery plateaus, their needs will be reassessed to determine whether any ongoing intervention will assist in their participatory or functional status. A lack of understanding about this change can cause unnecessary frustration for an injured person at the natural conclusion of the rehabilitation phase.
The Tribunal finds that Mrs Hamblin and her treating practitioners had not embraced the best practices model of achieving independence from treatment, as outlined in the Clinical Framework:
The key measure of treatment effectiveness is the ability of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.
The impact upon Mrs Hamblin of not being managed appropriately at the outset of her injury has resulted in her decreased functionality, persistent pain and long-term dependency on treatment. The Tribunal finds that Mrs Hamblin would be greatly assisted by being encouraged to undertake light cleaning duties around her home to encourage greater independence from treatment and external provision of services. Additionally, the Tribunal finds that Mr Hamblin would also benefit from being actively involved in provision of house-hold services.
As such, the Tribunal decides that Mr and Mrs Hamblin, in accordance with community standards, should receive one-and-a-half hours of cleaning a fortnight, which the Tribunal considers is reasonably required. Mr and Mrs Hamblin should be encouraged to continue with light cleaning duties to assist them to maintain the standard of cleanliness in their home which they consider appropriate.
The Tribunal was not convinced it was a community standard or expectation that an individual or professional cleaner would move heavy furniture every time they vacuumed; nor that they utilised a vacuum cleaner above head height to clean pelmets and curtains. The Tribunal is of the belief that the community standard would be that such heavy cleaning duties would constitute a one-off “spring clean”.
The Tribunal decides that this support should be reviewed in one year, to assess the degree to which Mr and Mrs Hamblin’s physical impairments prohibit them from undertaking their own household services. The Tribunal strongly encourages Comcare to provide Mr and Mrs Hamblin with a one-off occupational therapy home visit, to provide education on the certain strategies and utilisation of assistive equipment Ms Adamson had outlined in her second report.
CONCLUSION
The Tribunal having considered all the evidence before it, sets aside the decision under review, and in substitution decides that Mrs Hamblin should be entitled to one-and-a-half hours of cleaning services once a fortnight from the date of this determination, to be reviewed in one year.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member
[sgd]........................................................................
Associate
Dated: 28 November 2018
Date(s) of hearing: 31 October 2018 Applicant: In person Counsel for the Respondent: Mr Ray Ternes Solicitors for the Respondent: Mr Lazarnus Dobelsky of Moray & Agnew Lawyers
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