Hamblin and Comcare (Compensation) - [2018] AATA 4451

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Hamblin and Comcare (Compensation)

Details

AGLC: Hamblin and Comcare (Compensation) [2018] AATA 4451
Case: [2018] AATA 4451
Decision Date: 28 November 2018

CaseChat Overview and Summary

This matter concerned an application by Mrs Hamblin for compensation for household services from Comcare, following an accepted lower back injury. The dispute centred on whether Mrs Hamblin was entitled to cleaning services, given that her partner, Mr Hamblin, also had an accepted condition that impacted his ability to perform household tasks. The decision was made by Ms Anna Burke, Member, of the Tribunal.

The Tribunal was required to determine whether Mrs Hamblin was entitled to compensation for household services, specifically cleaning, under section 29 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This involved considering the extent to which her accepted injury reduced her capacity to perform household services, and whether the services she sought were reasonably required in the circumstances, having regard to the factors outlined in section 29(2) of the Act. A key consideration was the impact of Mr Hamblin's own accepted condition on the provision of household services.

The Tribunal reasoned that while Mrs Hamblin's injury had reduced her capacity to perform household services, the provision of such services was also affected by Mr Hamblin's own accepted condition. The Tribunal noted that the intention of section 29 was to compensate for services that an employee reasonably required as a result of their injury, and that the capacity of other household members to provide those services was a relevant consideration. The Tribunal also considered the need to avoid substantial disruption to the activities of other household members.

In conclusion, the Tribunal set aside the previous decision and determined that Mrs Hamblin was entitled to one-and-a-half hours of cleaning services once a fortnight. This entitlement was to be reviewed in one year, and the Tribunal encouraged Comcare to provide the Hamblins with an occupational therapy home visit to educate them on strategies and assistive equipment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 FINDINGSEvidence before the TribunalMrs Hamblin