Macri v D. J. Catanzariti and R.Catanzariti t/as Rossies Supermarket
[2005] NSWWCCPD 163
•23 December 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Macri v D. J. Catanzariti and R.Catanzariti t/as Rossies Supermarket [2005] NSWWCCPD 163
APPELLANT: Antonio Macri
RESPONDENT: Domenic James Catanzariti and Rosario Catanzariti t/as Rossies Supermarket
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC11541-03
DATE OF ARBITRATOR’S DECISION: 16 December 2003
DATE OF APPEAL DECISION: 23 December 2005
SUBJECT MATTER OF DECISION: Domestic Assistance; Medical or Related Treatment.
PRESIDENTIAL MEMBER: Acting Deputy President Michael J McGrowdie
HEARING:On the papers
REPRESENTATION: Appellant: Carter & Blumer, Solicitors
Respondent: No appearance
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 16 December 2003 is confirmed, other than to revoke determination 1 and to substitute for determination 1, the following:
1.The Respondent to pay Mary Macri the sum of $337.00 per week from 13 August 2002 to date and continuing pursuant to section 60AA of the Workers Compensation Act 1987 together with interest on the arrears calculated to total $2,146.00.
2.The Respondent to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 14 January 2004 Antonio Macri (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 16 December 2003.
The Respondent to the Appeal is Domenic James Catanzariti and Rosario Catanzariti trading as Rossies Supermarket (‘the Respondent Employer’).
The Appellant Worker was employed by the Respondent Employer at their supermarket at Griffith. Whilst lifting tubs of chickens on 8 June 1993 the Appellant Worker suffered an injury to his neck, back, both arms and both legs.
As a result the Appellant Worker has, in the past, received lump sum compensation and has been in receipt of weekly payments since his injury.
The Appellant Worker has undergone surgery to his neck and back.
By way of an Application to Resolve a Dispute received by the Commission on 27 June 2003 the Appellant Worker relevantly sought a determination of a dispute in relation to:-
(a) nursing care expenses payable to his wife and
(b) domestic assistance in the nature of:-
(i)gardening services;
(ii)house maintenance/repairs; and
(iii)cleaning, washing and ironing.
A Reply from the Respondent Employer was received by the Commission on 18 July 2003.
Submissions in writing were made to the Arbitrator by the Respondent Employer on 6 November 2003 and by the Appellant Worker on 7 and 24 November 2003.
The Respondent Employer submitted that the Appellant Worker should not be awarded compensation for more than 12 hours per week for domestic assistance pursuant to section 60AA of the Workers Compensation Act 1987 (‘the 1987 Act’).
A further submission made by the Respondent Employer was that the Appellant Worker was not entitled to gratuitous domestic assistance in the absence of any evidence that such assistance was being provided in accordance with a “care plan” established by the insurer as required by section 60AA(5)(b).
In the written submissions to the Arbitrator by the Appellant Worker, reference was made to the claim for domestic assistance provided by the Appellant Worker’s wife, Mary. She had worked at the Fosseys store in Griffith and had reduced her working hours from full-time to part-time from 6 September 1995 so she could provide “nursing care and care other than nursing care and other services for her husband”. On 12 December 1996 she ceased work altogether at Fosseys so that she could devote more time to the above mentioned activities.
The claim in respect of Marry Macri was for $105.50 per week from 6 September 1995 to 11 December 1995 when she was working part-time and then $397.50 per week based on 26.5 hours per week from 12 December 1996 when she gave up work. The Appellant Worker also sought this latter sum indexed in the future in accordance with the Consumer Price Index.
There was also a claim in respect of domestic assistance for:-
(i)gardening,
(ii)home maintenance/ repairs,
(iii)cleaning, washing and ironing
Significant reliance was placed by the Appellant Worker on the report dated 3 March 2003 of Advanced Rehabilitation Management Service.
The Respondent Employer also sought to have the Appellant Worker’s need for domestic assistance revised annually.
The Respondent Employer submitted that the Appellant Worker should not be awarded more than 12 hours per week of domestic assistance. The Respondent Employer primarily relied upon a report dated 5 September 2002 of Dr Wolfenden.
Mrs Macri provided a statement dated 17 June 2003 in the matter. In this statement she says that:-
“The nursing care and domestic duties I do for Tony are set out in the report of Advanced Rehabilitation Management Service of 3 March 2003”.
The Report of Advanced Rehabilitation Management Service was prepared by Janelle Toole, Occupational Therapist, who carried out a home assessment on 3 December 2002 to specifically assess “nursing and domestic care requirements”. It is noted in the report that the Appellant Worker required assistance with the personal care activities of showering, dressing, shaving and the like. The Appellant Worker, who needed to regularly rest, required assistance to position himself in bed. Mrs Macri would provide some massaging. The Appellant Worker was only capable of minimal activity associated with meal preparation. He essentially could not do shopping, house cleaning, washing, ironing or home maintenance tasks.
Dr Wolfenden who examined the Appellant Worker at the request of the Respondent Employer’s insurer reported on 5 September 2002 that 12 hours per week of domestic assistance was required. He did not elucidate on the sort of domestic assistance required.
A matter that the Appellant Worker relied upon was that Mrs Macri had submitted accounts both to the Appellant Worker and the Respondent Employer’s insurer for her services with the first of these accounts being dated 31 March 2001 seeking payment of $198,795.00 for the period 9 June 1993 to 31 March 2001. The last account in evidence was dated 30 March 2003.
The Appellant Worker sought to rely upon the decision of the Court of Appeal in Northern Rivers Charity Racing Association v Lloyd & Anor [2002] NSWCA 129 (16 May 2002) (‘Lloyd’) where the Court held that the trial judge was entitled to hold that where a mother with a brain damaged daughter had charged her daughter for domestic services, the daughter was entitled to recover those monies from the relevant workers compensation insurer on an indemnity basis as the services were provided to her at a “cost” within the meaning of section 60(1) of the 1987 Act.
It would appear therefore that the solicitors for the Appellant Worker wished to rely on a submission that the services rendered by Mrs Macri were not gratuitous but supplied at a “cost” to the Appellant Worker within the meaning of section 60(1) of the 1987 Act for which the Respondent Employer’s insurer would be liable. The Court of Appeal had previously decided in NSW Sugar Milling Co-Operative Limited v Manning (1998) NSWLR 442 (‘Manning’) that there was no liability under section 60(1) of the 1987 Act in its then form for nursing services afforded to a worker on a voluntary basis.
In response to the Respondent Employer’s submission that section 60AA requires that any domestic assistance be provided in accordance with a care plan established by the insurer, the solicitors for the Appellant Worker submitted that they had written to the Respondent Employer’s insurer on 13 May 2002 requesting that a care plan be established. Relying upon this, the Arbitrator was satisfied that “at least from 13 August 2002 the Applicant has attempted to comply with section 60AA(3)(b), and the requirements of this section have been made out.”
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 16 December 2003, records the Arbitrator’s orders as follows:-
(1)The Respondent to pay Mary Macri, the wife of the Applicant, an amount for 22.5 hours of care of the Applicant worker each week retrospective to 13 August 2002 such amount to be reviewed and adjusted according to the Australian Consumer Price Index on 10 December in each year with the first such review to take place on 10 December 2004.
(2)The Respondent to pay for the provision of 12 hours of domestic assistance to the Applicant such assistance to be as determined by a medical practitioner.
(3)At the Insurer’s request and expense, but no more than once in each twelve month period, the Applicant shall provide a report by a competent professional as to the need or otherwise for the maintenance of domestic assistance as set out in paragraphs 1 and 2 of these Orders and for these purposes, the Insurer may nominate a qualified professional to prepare the report.
(4)The Respondent to pay the Applicant’s costs as agreed or assessed.
The Arbitrator found that the Appellant Worker had a need for domestic assistance and gratuitous domestic assistance. It is clear that the Arbitrator treated the services provided by Mrs Macri as being supplied on a gratuitous basis. He states “I have determined Mrs Macri should be reimbursed for 22.5 hours in each week of ‘gratuitous domestic assistance’”. The Arbitrator considered that such an entitlement should date from 13 August 2002 upon the basis that it was then that the solicitors for the Appellant Worker requested the insurer of the Respondent Employer to establish a care plan.
The Arbitrator does not appear to have placed any reliance on the accounts prepared by Mrs Macri and which were given to her husband and the Respondent Employer’s insurer.
ISSUES IN DISPUTE
The Appellant Worker sought leave to appeal upon the basis that the Arbitrator did not determine that Mrs Macri’s entitlement should date from 6 September 1995 as claimed and did not specify the hourly rate at which Mrs Macri should be paid. Further, the Appellant Worker submits that the Arbitrator should have awarded interest.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
There has been no Notice of Opposition lodged by the Respondent Employer to the Application for Leave to Appeal. On 9 February 2004 the Commission received a Certificate of Service from the Appellant Worker certifying that the Application had been served on the Respondent Employer itself, the insurer of the Respondent Employer and the solicitors who acted for the Respondent Employer in respect of the Application to Resolve a Dispute. Noting that there had been no response from the Respondent Employer I issued a direction which was forwarded to the Respondent Employer itself, the insurer and the solicitors. The direction provided the Respondent Employer with a further opportunity to lodge submissions with the Commission and serve them on the Appellant Worker if it wished to oppose the appeal. No response was forthcoming.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant Worker that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
On 20 September 2004 Deputy President Fleming granted leave to appeal.
FRESH EVIDENCE
Incorporated into the Application for Leave to Appeal was an application by the Appellant Worker for the leave of the Commission to adduce fresh evidence.
The Appellant Worker sought leave to rely on the documents described in the Application for Leave and attached to it. They are documents which essentially go to support the Appellant Worker’s submission that the dispute between the Appellant Worker and the Respondent Employer goes back to at least 29 October 1996 when the Appellant Worker filed an Application for Determination in the Compensation Court of NSW making a claim from 6 September 1995 in respect of the Applicant Worker’s wife upon the basis of care which she had provided.
The Appellant Worker seeks to have this material before the Commission on the Appeal having regard to the Arbitrator’s comment in the Statement of Reasons that correspondence between the Appellant Worker and the Respondent Employer relating to the Appellant Worker’s claim for domestic services and medical expenses went back to August 2002. The Appellant Worker seeks to show that it goes back much earlier.
It appears to me that nothing turned on the Arbitrator’s factual assumption that correspondence went back to August 2002. It was simply referred to by the Arbitrator by way of historical background. It was the fact that the Appellant Worker wrote to the Respondent Employer’s insurer on 13 August 2002 requesting that the insurer establish a care plan that was the significant date for the Arbitrator in relation to the Respondent Employer’s liability to Mrs Macri.
Notwithstanding that this evidence appears to have been available to the Appellant Worker when the proceedings were before the Arbitrator and that nothing turns on it I propose to grant leave to the Appellant Worker to rely on it so that the background is more accurately recorded.
EVIDENCE AND SUBMISSIONS
The evidence before me is the evidence that was before the Arbitrator with the addition of the documents accompanying the Application for Leave to Adduce Further Evidence and contained in the Application for Leave to Appeal.
I have already outlined the submissions made by the Appellant Worker on the Appeal and which are set out in the Application for Leave to Appeal.
DISCUSSION AND FINDINGS
Having given an outline of the facts I will now turn to examine the operation of the 1987 Act in terms of entitlements to compensation for domestic services.
Section 60 was, and is currently, contained within Division 3 (Compensation for medical, hospital and rehabilitation etc) of Part 3 (Compensation – Benefits) of the Act. Before 1 January 2002, section 60 so far as is relevant provided that:
“(i) If, as a result of an injury received by a worker, it is reasonably necessary that:-
(a)any medical or related treatment be given the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service….”
Section 59 did and still does, define “medical or related treatment” to include “(e)….nursing…supplied or provided for a worker otherwise than as hospital treatment” and “(f) care (other than nursing care) of a worker in the worker’s home directed by a medical practitioner having regard to the worker’s incapacity”.
It has been held that “nursing” does not include “domestic assistance” and that a nurse, whilst not necessarily a professionally qualified person is nonetheless a person with “special talents in giving skilled assistance to those who are ill or injured” (Pennant Hills Restaurants Pty Limited v Barrell Industries Pty Limited (1977) 2 NSWLR 827 as per Hutley J. at 850).
In the present matter, the services provided by Mrs Macri would not, in my view, be treatment by way of nursing as referred to in section 59 of the 1987 Act.
Manning was a case decided by the Court of Appeal on 27 August 1998 before the amendments to sections 59 and 60 were effected by the Workers Compensation Legislation Further Amendment Act 2001 (‘Act No. 94 of 2001’) which commenced to operate on 1 January 2002.
It was decided in that case that section 60 was an indemnity provision which required “costs” to be incurred before any liability to pay compensation arose under the section. Accordingly, it was held that “medical or related treatment” provided voluntarily to an injured worker was not a “cost” within the meaning of section 60. As the services were provided voluntarily, there was no charge made and therefore no “cost” involved.
Clearly, there was no compensation payable for “care (other than nursing care) of a worker in the worker’s home….” if the services were provided gratuitously.
In Lloyd, previously cited, the Court of Appeal heard an appeal from a determination of the Compensation Court of NSW made prior to the amendments to sections 59 and 60 by Act No. 94 of 2001.
Compensation was claimed in respect of the cost of services provided by a mother, Mrs Lloyd, to her brain-damaged daughter, Kim. Presumably, to overcome the exclusion of gratuitous services from section 60 (see Manning) the solicitor for Mrs Lloyd drafted an invoice setting out Mrs Lloyd’s charges for the services she had rendered. The leading judgment was delivered by Ipp JA who considered that the evidence of the invoice was of doubtful weight. He stated that:
“[40]…The fact that such an invoice was sent so long after Mrs Lloyd commenced providing her services detracts significantly from the probative weight of the evidence”.
Nonetheless, His Honour considered that the invoice was relevant and accordingly it was open to the trial judge to conclude that Mrs Lloyd intended to hold her daughter liable for her services.
His Honour had previously stated (at [23]) that “Mutual promises made in the ordinary course of domestic relationships do not ordinarily give cause for action on a contract: Balfour v Balfour (1919) 2KB 571”. However, in the view of Ipp, J.A.:
“[14]….Mrs Lloyd was a supplier of necessary services to someone in need who lacked legal capacity to contract for them. In such circumstances an obligation may be implied on the part of the incapacitated person to pay the person who supplied the necessities…”
I do not consider that it is likely in the present case that there was a contract between the Appellant Worker and Mrs Macri whereby the Appellant Worker became liable to Mrs Macri for the services she provided. The fact that the first invoice was created long after services commenced suggests that they were provided gratuitously. Also, the statements of the Appellant Worker and Mrs Macri which were before the Arbitrator do not suggest a conclusion that they had negotiated a contract between them.
Accordingly, the Arbitrator was correct in proceeding on the assumption that the services of Mrs Macri had been provided gratuitously.
The result therefore, is that prior to 1 January 2002 when sections 59 and 60 of the 1987 Act were amended there was no liability on the Respondent Employer to pay compensation pursuant to section 60 in respect of the domestic services claimed.
Even if the services were provided at a cost then, other than “nursing”, only services directed to the “care…of the worker in the worker’s home” could be included. Certainly, housekeeping or home maintenance, not being care of the worker, would not be compensable (see: Western Suburbs Leagues Club Illawarra Limited v Everill (2001) 21 NSWCCR 516).
Act No. 94 of 2001 made changes to sections 59 and 60 and introduced a new section 60AA. The relevant parts of Act No. 94 of 2001 commenced operation on 1 January 2002. Section 59 was amended to include “(f1) domestic assistance services” in the definition of “medical or related treatment”. Domestic assistance was excluded from section 60 and special provisions were enacted in the new section 60AA to deal with domestic assistance. Liability to pay for domestic assistance including gratuitous domestic assistance was created by this section, subject to certain requirements set forth in the section being met.
“Gratuitous domestic assistance” is defined in sub-section 6 of section 60AA to mean “domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay”. The services of Mrs Macri would fall within this definition. Also, services not confined to nursing or care of the worker such as household help could also be included.
The amendments made by Act 94 of 2001 relating to compensation for domestic assistance do not apply to domestic assistance provided before 1 January 2002 (clause 10 of Part 18C of Schedule 6 of the 1987 Act).
As previously mentioned, the Arbitrator ordered payment to Mrs Macri from 13 August 2002 upon the basis that it was on that date that the Appellant Worker’s solicitors wrote to the insurer of the Respondent Employer requesting that a care plan be established. The Arbitrator found that this was a sufficient compliance with the requirements under section 60AA that the domestic assistance be provided in accordance with a care plan. No challenge is made to the particular finding of the Arbitrator that the requirement was so satisfied. As there is no evidence that the requirement had earlier been satisfied there is no basis upon which a liability for gratuitous domestic services arose earlier or at any time back to 1 January 2002 when a potential entitlement arose. Accordingly, the Arbitrator’s determination in this regard should not be disturbed.
The Arbitrator determined that Mrs Macri was entitled to payment for 22.5 hours per week and this is not challenged. Also, section 61(8) of the 1987 Act makes it clear that the amount is recoverable directly by Mrs Macri as she was the one who provided the service.
The Arbitrator, however, did not specify the hourly rate to be paid. Section 60AA(4) provides that:-
“Compensation payable under this section for gratuitous domestic assistance is payable as if the costs of that assistance were such sum as may be applicable under section 61(2) in respect of the assistance concerned”.
Section 61(2) provides that:-
“The maximum amount for which an employer is liable for any particular medical or related treatment shall not exceed such sum (if any) as may be fixed by the Authority in respect of that treatment by order published in the Gazette”.
No submission has been made that a sum has been fixed by the Authority in respect of treatment by any Order published in the Gazette. A perusal of the October 2005 Edition of the WorkCover Benefits Guide does not reveal the existence of any sum fixed by the Authority in respect of domestic assistance.
Section 61(1) of the 1997 Act provides that:-
“(1) The amount for which an employer is liable in respect of the medical or related treatment of a worker is such amount as is reasonably appropriate to the treatment given having regard to the reasonable necessity for the treatment and the customary charge made in the community for the treatment to persons other than the worker”.
In the submissions made by the Appellant Worker on the Appeal it was submitted that:-
“The Arbitrator….failed to specify an hourly rate unless it is the amount as per the report of Advanced Rehabilitation Management.”
The report of Advanced Rehabilitation Management sets out the hourly costs for various services where these services are provided by “an outside agency”. A rate of $25 per hour is referred to in relation to home care and domestic assistance.
There is no provision in the Act for the automatic indexation of the amount and despite the apparent practicality of the Arbitrator’s order that such amount be reviewed and adjusted in accordance with the Consumer Price Index, there is simply no power to do this and accordingly constituted an error of law.
There have been no challenge or any submission made in relation to determination Nos. 2 to 4 as made by the Arbitrator. Whilst I have doubts about the correctness of orders 2 and 3, as there is no challenge to them I do not propose to disturb them. The Appellant Worker has, however, submitted on the Appeal that “The Arbitrator…failed to award interest as sought…”.
The Appellant Worker clearly did raise the question of interest in the submissions before the Arbitrator. The Appellant Worker relied then and relies now on the decision in Lloyd’s case, previously referred to.
The Commission has discretionary power to award interest pursuant to section 110 of the 1998 Act. There is no doubt that the Appellant Worker duly made a claim well before 13 August 2002. I propose to allow interest in the sum of $2,146.00 which I have calculated at the rate of 3% per annum on the total arrears due to Mrs Macri to date.
DECISION
Accordingly, the decision of the Arbitrator dated 16 December 2003 is confirmed, other than to revoke determination 1 and to substitute for determination 1 the following:-
“1.The Respondent to pay Mary Macri the sum of $337.00 per week from 13 August 2002 to date and continuing pursuant to section 60AA of the Workers Compensation Act 1987 together with interest on the arrears calculated to total $2,146.00.”
COSTS
I order that the Respondent Employer pay the Appellant Worker’s costs.
Michael J McGrowdie
Acting Deputy President
23 December 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL J McGROWDIE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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