Hutchins and Military Rehabilitation and Compensation Commission

[2005] AATA 1083

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1083

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/290

VETERANS APPEALS DIVISION		)
Re		STANLEY HUTCHINS

Applicant

And MILITARY REHABILITATION
AND COMPENSATION
COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date1 November 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.     

…..................[Sgd].......................

RG Kenny
  Member

CATCHWORDS

COMPENSATION - Safety, Rehabilitation and Compensation Act 1988 – household services payment – applicant moved from private residence to RSL facility – reduction in requirement for household services – decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 ss 4, 29

REASONS FOR DECISION

1 November 2005   Mr RG Kenny, Member

Background

1.      Stanley Hutchins, who was born on 4 February 1928, served in the Australian Army from 1946 to 1948 and in the Royal Australian Navy from 1949 until 1961.  He is receipt of a pension payable in accordance with the terms of the Veterans’ Entitlements Act 1986 and, additionally, he receives compensation payments in relation to pulmonary asbestosis from the Military Rehabilitation and Compensation Commission (the respondent).  Those compensation payments are made in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act) and they include a payment for household services.  From 23 November 2000, this was paid to him in the amount of $100 per week which was equivalent to 8 hours per week of household services.  On 6 December 2004, the respondent determined that this was to be reduced to 2 hours per week at the rate of $20 per hour.  That decision was affirmed on 23 March 2005 and, on 19 May 2005, Mr Hutchins sought review of that decision by the Administrative Appeals Tribunal (Tribunal). 

Hearing

2.      Mr Hutchins attended the hearing but was not represented.  The respondent was represented by Mr Dubè.  The following material was tendered and taken into evidence:

§exhibit 1 the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (T documents, T1-T31);

§exhibit 2     a report, dated 12 August 2005, by occupational therapist, Bradley Forge;

§exhibit 3     a statement, dated 17 October 2005, by Rita Bertram (with annexures A-E);

§exhibit 4     a questionnaire completed by Dr Ross Maxwell at the request of Mr Forge; and

§exhibit 5     an extract from the Household Service Guide provided by the Military Compensation and Rehabilitation Service

Issues and Legislation

3.      The payment of compensation for household services is provided for in section 29 of the Act which reads:

“Sect 29

Compensation for household services and attendant care services

(1)       Subject to subsection (5), where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.

(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).

(3)       Where, as a result of an 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.

(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.”

4.      The issue for the Tribunal is what amount of payment for household services, calculated in accordance with the requirements of that provision, is reasonable in Mr Hutchins’ circumstances. 

Mr Hutchins’ Submission

5.      Mr Hutchins submitted that, prior to the decision under review, he had been eligible to receive 8 hours per week of assistance in household services.  This had been provided to him by Daisy Anderson, a family friend of long standing.  In claiming weekly payments for Mrs Anderson, Mr Hutchins had only provided receipts for a total of $100 and this was because it represented the maximum amount that Mrs Anderson was able to earn before there was an impact on the income support payments made to her by the Commonwealth.  He submitted that he still required at least 8 hours of assistance from Mrs Anderson and he considered that it was demeaning for him to offer her a total of $40 per week which represented the amount described as appropriate in the decision under review.  He referred to an extract from the Household Service Guide produced by the respondent and submitted that it supported his claim for increased payments.

Respondent’s Submission

6.      Mr Dubè submitted that the circumstances of Mr Hutchins had changed from the time when he had been allowed 8 hours per week of assistance and, in particular, this was because he was no longer living in his own premises but, rather, in a complex owned and managed by the Returned and Services League of Australia (RSL).  He submitted that, while some assistance was still required for him to carry out household activities, this was significantly less than had previously been the case.  Mr Dubè relied upon the assessment completed by occupational therapist, Bradley Forge and upon a statement completed by his treating doctor, Dr Ross Maxwell. 

Evidence

7.      Mr Hutchins and his late wife had been friends with Mrs Anderson and her husband for many years.  After Mr Hutchins’ wife died, Mrs Anderson provided him with assistance in carrying out household duties.  She did this by visiting his home and staying for one or two days per week.  In late 1999, Mr Hutchins moved into a spare bedroom in Mrs Anderson’s house in Dalby.  At that stage, Mr Anderson was in a convalescent home in Caboolture.  The relationship between Mr Hutchins and Mrs Anderson was one of friendship only and they regularly visited Mr Anderson together.  In her Dalby home, Mrs Anderson carried out a range of household duties to assist Mr Hutchins.  This included cleaning his room and cooking his meals.  This arrangement continued until October 2004 when Mr Hutchins moved into a one bedroom unit in the RSL complex at Dalby.  In August 2005, Mr Hutchins moved to a two bedroom unit within the same RSL complex. 

8.      Mrs Anderson lives approximately 14 kms from the RSL complex.  She visits Mr Hutchins several times a week, carries out cleaning duties and cooks his meals.  Mr Hutchins provides the materials for this and Mrs Anderson cooks sufficient for small portions to be frozen for Mr Hutchins to use when she is not there.  Mr Hutchins usually prepares his own breakfast which comprises cereal or fruit.  Mr Hutchins has continued to pay Mrs Anderson the amount of $100 per week for assisting him even though he has made no claims on the respondent since late 2004.  In the six weeks prior to the hearing, Mrs Anderson was absent from Dalby and was unable to provide assistance to Mr Hutchins during that period.  In that period, Mr Hutchins was provided with assistance from ladies associated with his church.  They would not accept payment for their services but Mr Hutchins has made contributions to the church in that regard.  Mrs Anderson has recently returned to Dalby and has been able to continue to provide assistance to Mr Hutchins in return for the same remuneration as before. 

9.      Mr Hutchins has had negotiations with Corin’s Cleaning Service, a cleaning agency in Dalby.  When he moved from the one bedroom unit to the two bedroom unit in the RSL complex, their services were utilised to clean the vacated unit.  In evidence was a quotation from Corin’s Cleaning Service of $35 per hour for that form of cleaning.  Mr Hutchins paid at this rate when he made the move. 

10.     Mr Hutchins is in receipt of a pension under the Veterans’ Entitlements Act 1986 at the special rate in respect of a range of medical conditions including a heart condition and a condition associated with his lower limbs.  Because of his lung condition, he makes frequent use of oxygen and he has a unit which he uses at home and a mobile unit for use when away from home.  He owns a car and is still able to drive.  At the RSL complex, Mr Hutchins has no responsibility for the care of any gardens or areas outside his unit. 

11.     Mr Forge gave evidence and said that he stood by the contents of the report he prepared on 12 August 2005.  That report was completed following a period of two hours with Mr Hutchins in his unit where he was able to observe him and assess the extent to which he was able to carry out daily activities.  He observed Mr Hutchins in ambulation both outside and inside the unit.  He noted that Mr Hutchins was independent in functions such as toileting, bathing, grooming, dressing and eating although he needed to take his time because of the onset of breathlessness with effort.  He reported that Mr Hutchins was able to carry out light cleaning tasks such as wiping benches and washing small amounts of dishes but  needed assistance with heavier functions such as vacuuming, mopping, sweeping and cleaning the bathroom.  He noted that Mr Hutchins relied upon Mrs Anderson for washing and ironing his clothes.  In relation to shopping, he noted that Mr Hutchins would attend a shopping centre with Mrs Anderson unless he was unwell in which case she would do the shopping for him and bring it to his home. 

12.     Mr Forge recommended that Mr Hutchins should ambulate outside his unit with a single walking stick and also that certain support facilities should be installed in parts of his home such as in the toilet.  Mr Forge said that he provided Mr Hutchins’ treating doctor, Dr Maxwell, with a questionnaire to assist him in making his assessment.  On the basis of Dr Maxwell’s responses and his own observations, he formed the opinion that Mr Hutchins would only require household assistance for two hours per week and that this would be to carryout the heavier cleaning tasks in his unit. 

13.     The report from Dr Maxwell was in the form of a questionnaire about activities of daily living (ADL).  The questions and responses read:

Q1      What ADL services do you feel Mr Hutchins is unable to complete even if he were to implement energy conservation techniques?;

A        Heavy and moderate housecleaning, heavy washing.

Q2      What do you regard to be Mr Hutchins’ tolerance time to complete tasks in a reasonable time frame given his condition before the activity becomes too much for him and he requires a rest break?

A        Three to five minutes.

Q3      At what rate do you consider his degeneration to be; slow moderate or severe?

A.Slow.

14.     Dr Maxwell was referred to a range of activities comprising washing and hanging out of clothes on a daily basis, ironing clothes in a seated position, preparation of meals, washing up in a seated position in small amounts and light dusting and sweeping completed over the period of a day.  Dr Maxwell expressed the opinion that these could all be completed by Mr Hutchins except for the first one relating to the washing and hanging of clothes. 

15.     Also in evidence was a report by Sheena Johnson, occupational therapist.  This was completed on 8 November 2004 and provided the basis for the decision under review.  Ms Johnson also recommended that Mr Hutchins be provided with assistance for two hours per week and she noted the quote from Corin’s Cleaning Services of $20 per hour for such activity.  This was in contrast to the higher quotation of $35 per hour associated with cleaning a unit at the time of a change in tenancy.

Consideration

16.In sub-section 4(1) of the Act, the term household services is defined to mean:

……..services of a domestic nature (including cooking, house cleaning, laundry and gardening services) that are required for the proper running and maintenance of the employee’s household. 

17.     I am satisfied that Mr Hutchins’ lung condition diminishes his capacity to carry out certain services of a domestic nature.  Because he resides in the RSL complex, the nature of his household is one where he has no responsibility for gardening or outdoor maintenance activities.  I have noted Mr Hutchins’ reference to the extract from the respondent’s Household Service Guide.  This is aimed at providing guidance to those who make decisions under the Act.  The extract relied on by Mr Hutchins reads:

A seriously injured employee, living alone and previously responsible for all household tasks, with no family members living nearby, could be considered as reasonably requiring all household services to ensure the proper running and maintenance of his/her household.

18.     The application of that guideline depends on the particular capacities of the employee in question.  The extent of those capacities must be assessed on the basis of the available evidence.  In this matter, I am satisfied that the evidence of Mr Forge, Ms Johnson and Dr Maxwell refers to a level of support which is required only for the heavier forms of household duties.  Mrs Anderson may well spend more than two hours per week with Mr Hutchins but I am satisfied that this is as a result of their long term friendship and that, for the purposes of carrying out household services under section 29 of the Act, the level of assistance which is reasonably required by him because of his employment-related lung condition is two hours per week.  I have noted the quotation from Corin’s Cleaning Service and I am satisfied that the rate of $20 per hour is appropriate for the form of household assistance required in Mr Hutchins’ case.  In summary, I am satisfied that, in accordance with section 29 of the Act, the respondent is liable to pay compensation in the amount of $40 per week for the conduct of household services for Mr Hutchins. 

Decision

19.The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         Jeff Mills       
  Legal Research Officer

Date/s of Hearing:  21 October 2005 [at Toowoomba]
Date of Decision:  1 November 2005 [at Brisbane]
The Applicant was unrepresented and appeared in person      
Counsel for the Respondent:    Mr B Dubè          
Solicitor for the Respondent:     Australian Government Solicitor