Hesami v Hong Australia Corporation Pty Ltd
[2011] NSWWCCPD 14
•11 March 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Hesami v Hong Australia Corporation Pty Ltd [2011] NSWWCCPD 14 | ||||
| APPELLANT: | Adam Hesami | ||||
| RESPONDENT: | Hong Australia Corporation Pty Ltd | ||||
| INSURER: | QBE Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-5319/10 | ||||
| ARBITRATOR: | Ms A Simpson | ||||
| DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING: | 14 October 2010 16 February 2011 | ||||
| DATE OF APPEAL DECISION: | 11 March 2011 | ||||
| SUBJECT MATTER OF DECISION: | Compensation for gratuitous domestic assistance; s 60AA of the Workers Compensation Act 1987; whether compensation is payable for care provided before the establishment of a care plan; meaning of “in accordance with”; circumstances in which previously unnotified matters may be heard or otherwise dealt with by the Commission; ss 289A and 74 of the Workplace Injury Management and Workers Compensation Act 1998 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | Oral | ||||
| REPRESENTATION: | Appellant: | Mr P Stockley, instructed by Carroll & O’Dea | |||
| Respondent: | Mr I Judd, instructed by Gillis Delaney | ||||
ORDERS MADE ON APPEAL: | Paragraph 1 of the Arbitrator’s determination of 14 October 2010 is revoked and the matter is remitted to a different Arbitrator for re-determination of the only outstanding issue, namely whether Ms Niroumand, the worker’s wife, has lost income or foregone employment as a result of providing domestic assistance to the worker. Paragraphs 2 and 3 of the determination of 14 October 2010 are confirmed. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST. | ||||
BACKGROUND
The appellant worker, Adam Hesami, sustained a serious back and shoulder injury when he fell from a milk crate while trying to place a heavy box on a shelf in the course of his employment with the respondent employer, Hong Australia Corporation Pty Ltd, on 5 December 2005. Investigations revealed a large disc protrusion at L2/3. He underwent surgery on 22 March 2006.
Though Mr Hesami returned to work on light duties after his operation, he was unable to cope and ceased work in July 2006. He has not returned to work since. Mr Hesami is severely disabled because of his injuries. He has severe restrictions in the range of movement of his right shoulder and has difficulty walking. He is often confined to a wheelchair and is unable to care for himself.
In a letter dated 19 August 2008, Mr Hesami’s former solicitors claimed compensation for domestic assistance under s 60AA of the Workers Compensation Act 1987 (the 1987 Act) from the respondent employer’s insurer, QBE Workers Compensation (NSW) Ltd (QBE). QBE did not respond to that letter.
In proceedings commenced in the Commission on 20 August 2009 (No 6656 of 2009 – the first application), Mr Hesami claimed compensation for past and future domestic assistance. In a Reply filed on 2 September 2009, the respondent employer purported to rely on a dispute notice attached to the application (none was attached) and sought leave to dispute the claim on the following grounds:
“(a) The Applicant’s claim for domestic assistance does not meet the requirements as set out in Section 60AA of the Workers Compensation Act 1987. In particular the Respondent relies upon sub-section 3 in that compensation is not payable for gratuitous domestic assistance unless the following requirements are also satisfied:
(i)the person who provides assistance must have lost income or foregone employment as a result of providing assistance;
(ii)the assistance must be provided in accordance with a care plan established by an insurer in accordance with the WorkCover Guidelines.
(c) [sic] Payments are only to be made if those costs and the provision of the assistance is properly verified (and the WorkCover Guidelines) [sic] may make provision for how the performance of those services is to be verified).
(d) The WorkCover Guidelines specify evidentiary requirements relating to the loss of income and the requirement for a domestic assistance diary. This evidence has not been provided as part of the claim.”
Mr Hesami discontinued these proceedings at a teleconference on 28 September 2009. The Commission’s file has not recorded the reason for the discontinuance.
He again claimed compensation for domestic assistance in an application registered in the Commission on 29 September 2009 (No 7864 of 2009 – the second application). The respondent employer filed a Reply on 15 October 2009 in which it purported to rely on a dispute notice attached to the application (none was attached) and sought leave to dispute the claim on the following grounds:
“(a) The Applicant’s claim for domestic assistance does not meet the requirements as set out in Section 60AA of the Workers Compensation Act 1987. In particular the Respondent relies upon sub-section 3 in that compensation is not payable for gratuitous assistance unless the following requirement are [sic] also satisfied:
(i)the person who provides assistance must have lost income or foregone employment as a result of providing assistance.
(b) Payment [sic] are only to be made if those costs and the provision of assistance is properly verified (and the WorkCover Guidelines) may make provision of the assistance of those services is to be verified [sic].
(c) The Respondent intends to file and serve a Direction for Production on the Applicant’s wife and brother-in-law for source materials demonstrating the domestic assistance diary.”
Mr Hesami discontinued these proceedings at a conciliation conference on 16 November 2009. In dealing with the worker’s application for costs, the Arbitrator recorded in a Statement of Reasons for Decision delivered on 8 December 2009 that:
(a) he had been informed that the respondent employer had agreed to establish a care plan in accordance with the WorkCover Guidelines;
(b) the establishment of a care plan was a prerequisite for a claim for relief under s 60AA of the 1987 Act;
(c) he had no power to order the employer or its insurer to establish a care plan and, in any event, counsel for Mr Hesami could not refer to any endeavour on behalf of Mr Hesami to request the establishment of a care plan prior to lodging the application;
(d) the more likely case was that a procedural prerequisite needed to be put in place, hence the decision to discontinue the application and agree upon the establishment of a care plan, and
(e) in the circumstances, there was no basis for ordering the respondent to pay the applicant’s costs.
In a report prepared by Ms Maclachlan, occupational therapist with Konekt, on 29 January 2010, she recommended that Mr Hesami be provided with self-care services, on top of the 24-hour care services his brother-in-law was providing, of four hours per day five days per week, to enable the family to have a break from caring for him. The parties accept that this document constitutes the care plan the respondent employer agreed to obtain at the conciliation conference on 16 November 2009.
On 5 July 2010, Mr Hesami lodged with the Commission a third application for the cost of gratuitous domestic assistance. This is the application now before me. He claimed “$226,498.20 for past domestic assistance provided and [the] maximum statutory rate from present and continuing” in respect of gratuitous care provided to him by his wife, Negar Niroumand, and his brother-in-law, Maziar Niroomand.
In a Reply filed on 16 July 2010, the respondent employer reproduced the matters set out in the Reply filed on 2 September 2009 in the first application (including the same typing and numbering mistakes) (see [4] above). The July 2010 Reply added an additional sentence as follows:
“The Respondent relies on the Section 74 Notice dated 9 July 2010 which denied liability on the basis that the applicant had not met the pre-requisites of Section 60AA as mentioned above.”
The s 74 notice from QBE, dated 9 July 2010, denied liability on one ground only, namely “that evidence has not been provided for loss of income or foregone employment”. The notice referred to paragraph 7.1 of the Guidelines, which provides examples of the evidence required to establish whether the care provider has loss of income or foregone employment as a result of providing the care. It said that the worker’s wife and brother-in-law had not provided documentation that demonstrated their income prior to providing the gratuitous care and the loss of income or foregone employment since providing that care.
Neither party raised any issue about the pleadings or the issues in dispute at a teleconference on 9 August 2010.
The Commission listed the matter for conciliation and arbitration on 6 September 2010. Counsel for the respondent employer, Mr Judd, advised that the claim for gratuitous domestic assistance from 18 July 2009 (which related to assistance provided by Mr Niroomand, the worker’s brother-in-law) had been settled and the respondent would pay $750 per week from 18 July 2009 to date and continuing for that claim. The remaining claim was for domestic assistance provided by Ms Niroumand from 12 February 2006 to 26 February 2006, 22 April 2006 to 22 August 2006, and 18 November 2006 to 18 July 2009.
Counsel for Mr Hesami, Mr Stockley, raised a “threshold point” (T3.23), namely that there had been no formal denial of the claim. Mr Judd submitted that it was a claim with a long history that had been “muddied” (T3.54) by its longevity and it had been assumed that notices had been served under s 74. He said that it had always been the situation that the claim for domestic assistance was denied and that Mr Hesami was not prejudiced because he had “been aware of it for years” (T4.9).
The Arbitrator did not rule on this preliminary point, but heard submissions on the substantive claim. In a reserved decision delivered on 14 October 2010, the Arbitrator stated that it was in the interests of justice to “permit the dispute to be dealt with” (Statement of Reasons (Reasons) at [14]). She concluded that the worker had “not met the onus of establishing that his wife has foregone employment and lost income as a result of providing domestic assistance” (Reasons at [31]) and she found that the conditions of s 60AA and the WorkCover Guidelines for the Provision of Domestic Assistance (the WorkCover Guidelines) had not been met.
The Commission issued a Certificate of Determination on 14 October 2010 in the following terms:
“The Commission determines:
1. That there is an award for the Respondent.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.
3. That there is an uplift for complexity in the order of 20% for both parties.”
In an appeal filed on 11 November 2010, Mr Hesami seeks leave to challenge the Arbitrator’s findings and orders.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Monetary threshold
It is not disputed that the monetary thresholds in s 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) permitting the respondent employer to rely on the s 74 notice dated 9 July 2010, and
(b) finding that Ms Niroumand had not established that she had lost income or foregone employment as a result of providing domestic assistance to the worker.
At the oral hearing of the appeal, it became apparent that there was a further issue in dispute, namely whether the provider of the domestic assistance could recover compensation for gratuitous assistance provided before the preparation of the care plan by Ms Maclachlan on 29 January 2010. Though the Arbitrator had not dealt with that issue and QBE had not raised it in the s 74 notice, Mr Judd submitted on it at the arbitration (T10.24) and the respondent employer had included it as an issue in its Reply in the present claim and in the first application.
Given that it raises a question of statutory construction, Mr Stockley did not argue that the respondent employer should not be permitted to rely on it, even though it had not been identified as an issue in the s 74 notice. Whilst it was unsatisfactory that the issue was not in the s 74 notice, in all the circumstances, and given that the issue does not raise any prejudice to the worker that could be met by calling further evidence, I believe that it is in the interests of justice that the Commission hears and determines this issue (s 298A(4) of the 1998 Act). I gave the parties leave to file further written submissions on this issue, which I have considered below.
I will deal with the issues under two headings: first, the s 74 notice and, second, the care plan.
SUBMISSIONS, DISCUSSION AND FINDINGS
The s 74 notice
In respect of the late s 74 notice, the Arbitrator said:
(a) there was no documentary evidence that, at any time prior to the issue of the notice on 9 July 2010, the respondent employer gave notice to the worker that it would be disputing the s 60AA claim;
(b) the application previous to the current claim had been discontinued because of the necessity to “provide a functional assessment pursuant to s 60AA requirements” (Reasons at [12]), and
(c) the worker had not taken issue with the late service of the s 74 notice until the day of the arbitration on 6 September 2010.
She then stated (at [13] and [14]):
“In my view there is evidence that the Respondent had considered the s60AA matter, and that is the fact that the matter had been discontinued on the basis of an absence of functional assessment report. There is no evidence as to why previous claims had been discontinued however in my view it is unlikely that the discontinuance was not because of submissions from the Respondent with respect to the s60AA claim and the reasons for the dispute. Even if there were only three ARDs discontinued either after a telephone conference or a conciliation hearing, at some stage there would have been discussion between the parties as to the nature of the dispute, and there is only one dispute in this matter which is the provision of domestic services pursuant to s60AA.”
She concluded that she did not believe the late s 74 notice had prejudiced Mr Hesami. Having regard to the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 354(3) of the 1998 Act), she felt that the interests of justice required that she exercise her discretion under s 289A(4) of the 1998 Act to permit “the dispute to be dealt with”.
On appeal, Mr Stockley submitted that:
(a) the Arbitrator only considered prejudice to Mr Hesami, but failed to consider the other matters in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 (Mateus);
(b) the insurer provided no explanation as to why it had not served a s 74 notice until 9 July 2010;
(c) in view of the history of the matter, Mr Hesami was entitled to see the real issue as the institution of a care plan, not the question of lost income or foregone employment, and
(d) in her decision, the Arbitrator identified deficiencies in the evidence on the issue of whether Ms Niroumand had lost income or foregone employment as a result of providing domestic assistance to Mr Hesami. That conclusion “flies in the face of her conclusion that there’s no prejudice to the Applicant” (appeal hearing T9.28).
It was submitted on behalf of the respondent employer that the insurer served the s 74 notice on 9 July 2010, just a few days after the worker’s solicitor had lodged the present application in the Commission on 5 July 2010 and, as the hearing was not until 6 September 2010, the worker had about two months to deal with the issues raised. It was also submitted that “the respondent acted with equity and good conscience and the delay of one week was not prejudicial”.
Section 279 of the 1998 Act requires that claims for medical expenses (which includes claims under s 60AA) must be accepted or disputed within 21 days after the claim is made. Leaving aside the first claim for domestic assistance (made by letter by Mr Hesami’s former solicitors on 19 August 2008, and to which QBE did not respond), Mr Hesami has based his present claim on a letter from Carroll & O’Dea to QBE dated 11 March 2010. QBE should have accepted or disputed the claim on or before 1 April 2010. It ignored that letter and did nothing until after the worker lodged his application in the Commission on 5 July 2010. Therefore, the s 74 notice was several months out of time, not a few days as Mr Judd has submitted. QBE has not explained why it did not comply with ss 279 and 74. The length of the delay and the lack of explanation for it strongly militate against allowing QBE to rely on the notice.
On the other hand, given that the present application had attached to it a considerable body of evidence that could only have been relevant if the insurer disputed that Ms Niroumand and Mr Niroomand had lost income or foregone employment as a result of providing assistance to Mr Hesami, it is difficult to see that Mr Hesami’s legal advisers were taken by surprise by the only issue in the notice.
At the teleconference on 9 August 2010, neither party took issue with the late notice. Legal practitioners in the Commission should be well aware that one of the main functions of the teleconference is to deal with preliminary matters of this kind to ensure that the matter is ready to proceed to conciliation and arbitration. The employer should have sought leave to rely on the late notice. As it did not do that, the worker should have brought to the Arbitrator’s attention that he objected to the employer relying on the late notice. The first time either party raised the late s 74 notice was when Mr Stockley objected to it at the arbitration. The conduct of the matter from both sides was unsatisfactory.
Nevertheless, as the Arbitrator stated, the Commission has a statutory duty to act according to equity, good conscience and the substantial merits of the case. Given the long history of the matter, the previous replies filed by the employer and the issues raised in those replies, the fact that the s 74 notice raised only one issue, and the nature of the evidence attached to the current application, I believe the Arbitrator was right to give QBE leave to rely on the notice.
However, in giving leave to rely on the notice in the course of her reserved decision, as opposed to at the hearing, and then finding that, because of deficiencies in the evidence, Mr Hesami had not met the onus of establishing that his wife had foregone employment and lost income as a result of providing domestic assistance, the Arbitrator deprived him of the opportunity of seeking to call oral evidence to address the alleged deficiencies in his case or seeking an adjournment to cure the defects.
I agree that the evidence of whether Ms Niroumand had lost income or foregone employment as a result of providing domestic assistance to the worker was deficient in the respects identified by the Arbitrator in her decision. However, those deficiencies only became critical once the Arbitrator gave QBE leave to rely on the late notice and took a certain view of the state of the evidence. Therefore, in the unusual circumstances of this case, the worker has suffered a significant prejudice and been deprived of the opportunity to fully meet the issue raised by the late reliance on the s 74 notice.
Mr Judd submitted that I should draw an adverse inference against Mr Hesami because of the failure to tender additional evidence on appeal dealing with the deficiencies in the evidence identified by the Arbitrator. To rebut any inference, Mr Stockley sought to call Ms Niroumand to give oral evidence on appeal. I refused Mr Stockley’s application to call oral evidence because Mr Judd’s submission, as a general proposition, is misconceived.
Additional evidence or fresh evidence on appeal is only allowed by leave (s 352(6) of the 1998 Act). Whether leave is granted depends on the circumstances in each case. The Commission has held in dozens of cases that arbitrations are not a trial run and parties should tender all relevant evidence at the arbitration rather than wait for the outcome and then seek to patch up deficiencies in their case on appeal. Any other approach would simply render the arbitration hearing little more that a preliminary skirmish of no consequence. It will rarely (if ever) be appropriate to draw an adverse inference against a party for failing to seek to call additional evidence on appeal, though such an inference may be open, depending on the circumstances, for failing to call evidence at the arbitration. No adverse inference (for failing to call evidence at the arbitration) is available in this case because of the late application by the employer to rely on the late s 74 notice combined with the fact that the Arbitrator did not rule on that issue until she delivered her reserved decision.
If the late s 74 notice were the only issue on appeal, I would revoke the Arbitrator’s determination and remit the matter to another Arbitrator for the matter to be re-determined on the basis of the additional evidence the parties may tender. However, it would be futile to remit the matter for a further arbitration if the respondent employer’s argument about the absence of the care plan is upheld.
The care plan
Section 60AA(1) of the 1987 Act states:
“If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if:
(a) a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and
(b) the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and
(c) the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2), and
(d) the assistance is provided in accordance with a care plan established by the insurer in accordance with the WorkCover Guidelines.”
Mr Stockley filed supplementary submissions on 21 February 2011 in which he argued:
(a) an employer is liable to pay the cost of domestic assistance where “the assistance is provided in accordance with a care plan established by the insurer in accordance with the WorkCover Guidelines” (s 60AA(1)(d));
(b) Mr Hesami claimed domestic assistance in a letter dated 19 August 2008;
(c) QBE first assessed Mr Hesami’s need for domestic assistance on 29 January 2010, when Ms Maclachlan, occupational therapist, provided a report;
(d) the administrative and formal requirements in s 60AA and the Guidelines are directed to ensuring that there is an objective basis for the payment of compensation for the domestic assistance delivered;
(e) an employer is not liable for domestic assistance at large and without scrutiny. It is entitled to and obliged to consider the need for domestic assistance by instituting a care plan;
(f) the words in s 60AA should be given their ordinary meaning. The dictionary meaning of the words “in accordance” is, in essence, “correspondence, agreement, conformity, harmony and consistency”;
(g) there can be no liability until the care plan is instituted. Once it is instituted, “its terms serve simply to limit the quantum of the assistance that is compensable”, so long as what has been provided is “in accordance, agreement, conformity, harmony, consistent with that plan” (subject to any other statutory qualification) liability is made out, and
(h) the section does not require that the assistance be provided “pursuant to” a care plan or that it requires that approval or assessment be undertaken prior to the service being provided.
Mr Judd submitted in response that:
(a) section 60AA(1)(d) is the last of four requirements before a worker can obtain paid domestic assistance. Each requirement is sequential and mandatory;
(b) the sub-section (d) requires a care plan before domestic assistance is paid by the insurer;
(c) in the event that there is no care plan available to the insurer, there are no parameters as to the need for care and the care provided;
(d) there are two propositions in sub-section (d); one is the assistance to be provided and the other is the care plan to be established;
(e) he does not cavil with the use of the word “accordance”, but asserts that the care plan is a separate issue which is required to be established by the insurer before assistance can be provided, and
(f) there is no requirement to provide for the payment of gratuitous assistance until “a care plan has been established” as referred to in sub-section (d).
In interpreting this provision, I must apply the principles of statutory construction explained by Allsop P (Giles and Hodgson JJA agreeing) in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12]. It is convenient to set out his Honour’s statement in point form (excluding citations):
(a) “[i]t is the language of Parliament that must be interpreted and construed”;
(b) “in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context”;
(c) “[c]ontext is to be considered in the first instance, not merely when some ambiguity is discerned”;
(d) “[c]ontext is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed”;
(e) “[f]undamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose”, and
(f) “general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect”.
Applying the above principles, I must interpret and construe the words in s 60AA having regard to their legal and historical context, giving close attention to the text and structure of the Act. I also have regard to the fact that the workers compensation legislation is “beneficial legislation” and that entitlements under such legislation should not depend on “distinctions which are too nice” (per Mahony JA in Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765). At the same time, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164, citing IW v City of Perth [1997] HCA 30; 191 CLR 1 (at 11–12) per Brennan CJ and McHugh J).
Parliament introduced s 60AA as part of a range of sweeping changes that commenced on 1 January 2002. The section appears in Div 3 of Pt 3 of the 1987 Act (which deals with compensation for medical, hospital and rehabilitation expenses) under the heading “Compensation for domestic assistance”. It provides compensation to a person who has provided the worker with gratuitous domestic assistance and, as a result of providing that assistance, has lost income or foregone employment. Prior to the introduction of s 60AA, the legislation provided no compensation for gratuitous domestic assistance and the cost of “care (other than nursing care) of a worker in the worker’s home” could only be recovered if provided by a commercial agency as “directed by a medical practitioner having regard to the nature of the worker’s incapacity” (s 59(f) of the 1987 Act). Section 60AA represents (on one view) a significant extension of the benefits payable and it is appropriate that claimants for benefits should establish their entitlement in accordance with the legislation.
The use of the conjunction “and” between each of the sub-sections in s 60AA(1) makes it clear that each of the requirements in the sub-sections must be satisfied before an employer is liable to meet the cost of domestic assistance. Though Mr Judd made submissions about when a medical practitioner first certified that it was reasonably necessary that domestic assistance be provided to Mr Hesami, that was not an issue identified in either the s 74 notice or the Reply and is not an issue in dispute. QBE has never disputed, or sought leave to dispute, the first three conditions in s 60AA(1). It has asserted (in the Reply) “the assistance must be provided in accordance with a care plan established by the insurer in accordance with the WorkCover Guidelines”. Its argument is not that Mr Hesami did not require domestic assistance between 2006 and 2009, or that the assistance provided was not consistent with the assistance recommended in the care plan, but that no compensation is payable for assistance provided before the insurer established the care plan on 29 January 2010.
Whilst I agree that there can be no liability unless all four of the conditions in s 60AA are satisfied, the construction contended for by Mr Judd leads to an obvious anomaly that is inconsistent with the clear intention of the provision. That intention is that, provided certain conditions are met, employers are liable for the cost of domestic assistance that is reasonably necessary as a result of the injury.
There is no logical reason why compensation can only be recovered for assistance provided after the preparation of the care plan. As this case graphically illustrates, the need for and provision of domestic assistance will always occur before the insurer establishes the care plan. The anomaly of the employer’s position is that liability under s 60AA can be avoided altogether, or substantially reduced, by the insurer simply not obtaining a care plan, or, as has happened in this case, by not promptly obtaining a care plan. Thus, in circumstances where the insurer delays (whether reasonably or unreasonably) establishing a care plan, it could obtain an unjustified windfall and the person who provides the assistance suffer an unreasonable penalty. There is no reason why that should be allowed and several why it should not.
Whilst I agree there is no requirement to pay for gratuitous domestic assistance until the insurer has established a care plan, that does not mean that there is no liability for domestic assistance provided before the establishment of the care plan. What is required is that the assistance be provided “in accordance with” a care plan.
The High Court considered the meaning of “in accordance with” in Walker v Wilson [1991] HCA 8; 99 ALR 1 (Wilson). That case concerned whether a worker had undertaken a journey “in accordance with” the terms and conditions of his employment. Deane, Dawson, Toohey and McHugh JJ held (at 11) that, in the context of the journey provisions in that case, the words “in accordance with” should be construed as meaning “in conformity with” or “consistently with”. This decision is essentially consistent with the Macquarie Dictionary definition of “accordance” as “agreement; conformity”.
Applying Wilson, considering the words used, the context in which they are used in the section, the context of the section in the legislation overall, and the purpose of the section, I believe the words “in accordance with” in sub-section (d) of s 60AA mean “in conformity with” or “consistently with”. It follows that, regardless of when the domestic assistance is provided, if it is in conformity with or consistent with the care plan, then, provided the other conditions in s 60AA are satisfied, the claimant is entitled to succeed.
As noted above, the employer has never argued that the domestic assistance Ms Niroumand provided to Mr Hesami between 2006 and 2009 was not “in conformity with” or “consistent with” the care plan prepared in January 2010. Its actions in settling the claim for the period from 18 July 2009 (that is, six months before the care plan came into existence) was an admission that the assistance provided by Mr Niroomand was “in conformity with” and “consistent with” Ms Maclachlan’s care plan. Ms Niroumand provided the same domestic assistance to her husband up to July 2009 as her brother provided after that date. If it were an issue in dispute, I would find that the domestic assistance provided by Ms Niroumand in the relevant periods up to 18 July 2009 was “in conformity with” and “consistent with” Ms Maclachlan’s 2010 care plan.
My conclusion is consistent with the objectives of the legislation. The 1987 Act (in which s 60AA appears) must be construed with, and as if it formed part of, the 1998 Act. Under “System Objectives”, s 3(c) of the 1998 Act provides that the purpose of the Act is to, among other things, “provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses” (emphasis added). It is consistent with this objective that liability for a claim for domestic assistance, which is a “related expense”, only arises for assistance that is “reasonably necessary” as a result of the injury. Domestic assistance that is “in conformity with” and “consistent with” a care plan meets this test, even if it was provided before the care plan came into existence.
OTHER MATTERS
QBE’s handling of this matter has been most unsatisfactory. On the evidence available, it failed to respond to the claim for domestic assistance made by Mr Hesami’s solicitor on 19 August 2008 and made no effort to establish a care plan until after Mr Hesami commenced proceedings in 2009. It has not explained why it did not obtain the care plan much earlier and its conduct is inexcusable. The matter will be referred to WorkCover for investigation.
The present claim has not been correctly pleaded. The cost of gratuitous domestic assistance is paid at the hourly rate calculated by dividing by 35 the amount estimated by the Australian Bureau of Statistics as the average weekly total earnings (full-time adult ordinary time) of all employees in New South Wales from time to time (see cl 7.4 of the Guidelines; Kajic v Hawker De Havilland Aerospace Pty Ltd [2009] NSWWCCPD 136 (Kajic)). The claim for $226,498.20 is not consistent with the Guidelines and will have to be amended to properly particularise the amount claimed in accordance with the Guidelines and Kajic.
The general conduct of this matter by both sides would not be a model to be followed in future claims of this type.
CONCLUSION
Though I am satisfied that it is in the interests of justice that QBE be allowed to rely on the only issue in its s 74 notice, namely whether Ms Niroumand had lost income or foregone employment as a result of providing assistance to the worker, I am also satisfied that, given the unusual way the case unfolded, Mr Hesami has suffered prejudice in that he has been denied the opportunity to call additional evidence to address the Arbitrator’s concerns about the evidence. The appropriate way for that prejudice to be addressed is for the matter to be remitted to a different Arbitrator for the “lost income or foregone employment” issue to be re-determined according to the evidence called at a second arbitration. That is now the only issue that remains in dispute.
This decision should not be interpreted as saying that if a claim fails because of an absence of evidence at the arbitration it can be rectified on appeal. That will rarely happen. Appeals are usually determined on the evidence called at the arbitration. That is even more likely to be the case after the amendments to s 352 in the Workers Compensation Legislation Amendment Act 2010, which, save for sub-s (5A), apply to decisions by Arbitrators from 1 February 2011. As I stated earlier in this decision, arbitrations are not a trial run where parties can await the outcome and then, if dissatisfied with the result, appeal and seek to tender on appeal the evidence that should have been called at the arbitration.
DECISION
Paragraph 1 of the Arbitrator’s determination of 14 October 2010 is revoked and the matter is remitted to a different Arbitrator for re-determination of the only outstanding issue, namely whether Ms Niroumand, the worker’s wife, has lost income or foregone employment as a result of providing domestic assistance to the worker.
Paragraphs 2 and 3 of the determination of 14 October 2010 are confirmed.
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST.
Bill Roche
Deputy President
11 March 2011
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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