MAREE BRAY and COMCARE

[2009] AATA 238

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 238

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1418

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MAREE BRAY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date8 April 2009

PlaceCanberra

Decision The decision under review is varied to the extent that the alterations specified in these reasons are reasonably required. The matter is remitted to Comcare to determine the amount of compensation that is reasonable in each case.

........[Signed]..............................

Mr S. Webb, Member

CATCHWORDS

COMPENSATION - accepted injuries and impairments - rehabilitation program completed - alteration of place of residence - relevant matters to have regard to - all alterations not reasonably required - decision varied

Safety, Rehabilitation and Compensation Act 1988 ss 37, 39, 67

REASONS FOR DECISION

8 April 2009 Mr S. Webb, Member         

1.Maree Bray was injured in employment. Her injury gave rise to other medical conditions for which Comcare has accepted liability. Mrs Bray has undergone surgery in relation to her compensable medical conditions. She commissioned and paid for alterations to her home, the cost of which she claimed from Comcare. Comcare accepted that some but not all of the alterations were reasonably required and therefore compensable. Mrs Bray requested reconsideration of this decision. On reconsideration Comcare decided that only some of the alterations were compensable. Unhappy with this decision, Mrs Bray lodged an application for review.

2.The issue for determination is whether the alterations claimed by Mrs Bray are compensable pursuant to s39 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’).

3.There is no dispute that Mrs Bray suffers from an injury that causes impairment within the meaning of the Act; nor is there any dispute that she completed a rehabilitation program within the meaning of s 37 of the Act.[1] It follows that the only issue remaining for determination is whether the claimed alterations were reasonably required by Mrs Bray, having regard to the nature of her work-related impairments.

[1] Safety, Rehabilitation and Compensation Act 1988 s 37.

4.The alterations that were commissioned, paid for and claimed by Mrs Bray are set out in Annexure A to her statement in Exhibit A2.[2]

[2] Exhibit A2, Annexure A, ‘Claim Form’ dated 6/9/2006.

5.Mrs Bray asserts that the alterations were necessary as a result of her deteriorating medical condition, especially as the extent of her impairment increased in the periods following hip surgery in November 2006 and September 2007. After each operation there was a period of approximately three months when she was not able to bear weight on the affected hip, followed by a long recovery period. By her own account, in the three months after each hip operation her movement was restricted and she remained in bed or used a wheel chair, with the assistance of her husband, when necessary. Mrs Bray’s evidence is that during these periods and subsequently she has not been able to share a bed with her husband, whose tossing and turning at night may increase her pain or cause her further injury. Mrs Bray says that it was in anticipation of these difficult periods of increased impairment that the alterations to the back porch and laundry of her residence were necessary. These alterations involved transforming the back porch and adjacent existing room into a bedroom, and the existing laundry into an en suite bathroom. The alterations Mrs Bray commissioned, paid for and claimed, that are presently before me, were all undertaken in 2006, prior to the surgery on her hips in November 2006 and September 2007.

6.In Mrs Bray’s submission the alterations in these areas were reasonably required in the circumstances; they provided her with a bedroom and bathroom that she could readily access using a wheel chair. She also asserts that it was necessary to install ramps and paths to enable safe wheel chair access from the street to the house, from the house to the garage, and safe ingress and egress from the front and rear entrances to the house and to the laundry and new bedroom area.

7.Mrs Bray asserts that her impairments rendered it necessary to modify the kitchen in her home. By her account the bench tops, sink and taps were too high, and the oven and fridge shelves were too low. Additionally, the original cupboards were too difficult for her to access. She says that the alterations involved reducing the height of the benches, the sink and the taps, replacing the stove with bench top hot plates and a wall oven, placing a dish-washer under the new benches, and replacing the kitchen cupboards with drawers. These alterations were necessary, Mrs Bray says, because the original configuration in the kitchen increased the pain in her shoulders. Even though Mrs Bray maintains that she can do but little in the kitchen and relies on her husband to undertake most domestic cleaning and cooking tasks, she asserts that the alterations were reasonable and necessary in the circumstances of her increasing impairment.

8.In sum, Mrs Bray asserts that Comcare should pay the cost of all the alterations as claimed.

9.As will appear, I do not agree.

10.Considering subs 39(1)(c) of the Act,[3] compensation is only payable for alterations of the kind claimed by Mrs Bray if the alterations are reasonably required having regard to the nature of her impairment (considerations concerning rehabilitation programs are not presently relevant). Furthermore, the quantum of compensation payable is that which is reasonable in relation to the costs paid by Mrs Bray. The matters to which regard must be had when making such a determination are set out at subs 39(2).[4]  It is not necessary to set each of those matters out here; these are matters to which I will return.

[3] Safety, Rehabilitation and Compensation Act 1988 s 39(1)(c).

[4] Safety, Rehabilitation and Compensation Act 1988 s 39(2).

11.As can be seen there are three steps in the process of determining the amount of compensation that is payable, if any, in relation to her claim. The first step is to determine the nature of Mrs Bray’s relevant impairments. The second step is to determine whether the claimed alterations are reasonably required, having regard to the nature of those impairments. The third step is to determine the amount of compensation that is reasonable in relation to alterations that are reasonably required. The questions of reasonableness posed involve an objective assessment. To the extent that subjective factors intrude, those factors are within the limited frame of impairment and attendant difficulty. It is necessary, therefore, to weigh up the relative costs and benefits of the claimed alterations, having regard to the nature of Mrs Bray’s impairment and the matters set out at subs 39(2),[5] and the costs and benefits, if any, of any alternatives, including not making the claimed alteration.

[5] Safety, Rehabilitation and Compensation Act 1988 s 39(2).

mrs bray’s impairments

12.Considering the evidence before me, I am reasonably satisfied that Mrs Bray has the following medical conditions:

a)    left and right lateral epicondylitis,

b)    left and right shoulder adhesive capsulitis,

c)    left and right hip trochanteric bursitis,

d)    occipital neuralgia,

e)    chronic pain in multiple locations that is increased by physical activity, as well as by sitting for long periods in unsuitable chairs and reclining on hard beds or examination tables, and

f)     widespread allodynia.[6]

[6] Exhibit A2, Annexure C, p1; Exhibit A3, report by Dr Ramage 29 May 2007, p7.

13.I am also reasonably satisfied that these conditions give rise to the following impairments:

a)    restricted movement of her neck, shoulders, elbows, thumbs and feet as a result of pain,

b)    difficulty sleeping,

c)    difficulty walking any distance and walking on uneven surfaces,

d)    difficulty standing for long periods,

e)    difficulty bending and kneeling for long periods,

f)     difficulty negotiating steps,

g)    difficulty using public transport,

h)    difficulty driving a car,

i)     difficulty grasping and holding items, in order to read in bed, or cook, or clean for example,

j)     difficulty lifting heavy items,

k)    difficulty raising her arms above shoulder height, for example when pulling clothing over her head, and

l)     loss of power in both upper limbs.[7]

[7] Exhibit A2, Annexures B, C and D; Exhibit A3, reports by Dr Ramage, Dr Champion, Associate Professor Smith and Dr Wellberry (various dates).

14.Mrs Bray gave evidence that she is unable to undertake many household chores and that she could perform only minimal activities associated with cooking, cleaning or gardening. Her husband gave evidence that he is “not domestically literate” and simply assists Mrs Bray when she experiences difficulty undertaking domestic activities, particularly in the periods following surgery. This evidence was not seriously tested and issues of credit and reliability were not pressed. I note, however, that there are a number of inconsistencies in Mrs Bray’s oral evidence and the evidence of her husband, and reports of her complaints, alleged symptoms and purported disabilities over time. Such inconsistencies were not squarely put to Mrs Bray in cross-examination. Even though it appears that Mrs Bray’s credit is not at issue, I will proceed cautiously when evaluating her uncorroborated evidence.

are the claimed alterations reasonably required?

15.There is no single answer to this question. I do not accept Comcare’s submission that the claimed alterations can simply be dealt with in composite form, relating to “the Bedroom/Bungalow”, “Wheelchair and Walking Frame Access”, “the Laundry Alterations” and “the Kitchen Area” as claimed.[8] It is necessary to determine whether each claimed alteration is reasonably required, having regard to the particular impairment and then it is necessary to determine the amount of compensation that is reasonable, if any.

[8] Exhibit A2, Annexure A.

16.At this point it is appropriate to observe that there is a paucity of detailed evidence concerning the precise alterations to Mrs Bray’s residence and the attaching costs. Furthermore, the present evidence tends to generality. It is said, for example, that the kitchen benches are too high for Mrs Bray and need to be lowered, but there is no evidence concerning the actual height of the original benches or the height to which the benches should be lowered on the basis of Mrs Bray’s impairments; nor is there any evidence concerning the height of the new benches that were installed in Mrs Bray’s kitchen. I note in passing, in relation to this example, that Mrs Bray gave evidence that the benches had been lowered by approximately 20 centimetres. One only has to carefully consider the photographic evidence concerning the kitchen benches before and after the alterations were made to observe that if there was any reduction in the height of the kitchen benches and sink, which is far from clear, such reduction was only of a minimal degree.[9] I am not persuaded that the kitchen benches were lowered by 20 centimetres as alleged by Mrs Bray.

[9] Exhibit A2, Annexure B, p3 (photograph of kitchen benches and sink) and Exhibit A5 (photograph of kitchen benches and sink).

17.The difficulty this example exposes was discussed with counsel. Both parties urged me to proceed, doing the best with the available evidence. That is what I will do, noting, however, that the itemised evidence in Mrs Bray’s claim concerning the scope of alteration works completed is not matched by suitably particularised evidence concerning the cost of each item. I understand, however, that invoices and receipts were lodged with Comcare. It is not clear to me that the invoices and receipts shed any greater light on the particular specifications of works undertaken or the particular costs attaching to each item. I will return to this matter.

the bedroom/bungalow alterations

18.These alterations include:

a)    laying a concrete slab;

b)    building in and joining an existing covered porch to create a new room with direct access to an existing laundry area;

c)    laying carpet in the new room;

d)    installing new wiring in the walls and ceiling of the new room, removing and relocating power points, installing new down lights and switches, and installing external lighting;

e)    purchasing and installing a split system reverse cycle heater in the new room.

19.Mrs Bray says that these alterations were necessary and were reasonably required because, otherwise, she would have experienced difficulty moving around inside her residence and using the existing bathroom facilities following surgery. Furthermore, Mrs Bray asserts that following surgery she was not able to share a bed with her husband. In her submission her compensable conditions and related sequellae have deteriorated, increasing the extent and degree of her impairments and necessitating the alterations claimed.

20.It can be accepted that Mrs Bray experienced and reasonably anticipated lengthy periods of convalescence following surgery in November 2006 and September 2007, especially during the first three months following each operation. It does not follow, however, that her increased level of impairment during these periods, particularly concerning her reduced mobility, are reasonable grounds to support the construction of a new bedroom in her residence.

21.As it appears to me, Mrs Bray’s residence contained two bedrooms before the alterations were made. As can be seen from the plan of the residence[10] and the oral evidence of Mr Bray, the two rooms at the front of the house are of similar dimensions and contain beds. Mr Bray’s evidence is that the room designated as a study previously contained a water bed. I am reasonably satisfied that this room could have been used by either Mrs Bray or her husband as a bedroom during periods in which she was convalescing.

[10] Exhibit A4.

22.I do not accept Mrs Bray’s submission that she was not able to move freely in the residence using a wheel chair during these periods. Her own evidence is that she acquired a wheel chair prior to the alterations and surgery in 2006; the wheel chair was 71 centimetres wide. I note from the house plan that the hall is 120 centimetres wide and the existing bedroom and bathroom doorways are 72 centimetres wide. By her own account, Mrs Bray was not able to propel herself in the wheel chair during her convalescence and subsequent periods of increased impairment, and relied on her husband to assist her in this regard. I can see no good reason why Mrs Bray, with her husband’s aid, could not access either the main or second bedroom or the bathroom using the wheel chair. This would provide a substantially cheaper option than constructing a new bedroom at the rear of the premises. I note that the doorway to the walk-in wardrobe in the main bedroom and the doorways to the ‘vanity’ room adjacent to the bathroom are only 68 centimetres in width. Thus, it could reasonably be argued that these doorways may have required some alteration to permit wheel chair access. Furthermore, the shower in the bathroom was a hand-held device over the bath, and it can be accepted that Mrs Bray would have experienced difficulty showering using such facilities. These are matters of relevance to the alterations to the laundry area, which contained a shower cubicle, to which I will return.

23.To the extent that Mrs Bray asserts that she required a new soft bed, such as she placed in the new bedroom at the rear of the house, I can see no reason why such a bed could not have been placed in the second existing bedroom. I note that two occupational therapists, Mr Haughton and Ms Sanson, assessed Mrs Bray’s residence in February 2003 and February 2006 respectively.[11] Neither occupational therapist recommended alterations of the kind Mrs Bray commissioned in relation to the new bedroom at the rear of the residence. Dr Wellberry, a Canberra general practitioner, recommended a number of alterations to Mrs Bray’s residence;[12] but Doctor Wellberry did not recommend altering Mrs Bray’s residence to include a new bedroom.

[11] Exhibit A2, Annexure B and D.

[12] Exhibit A2, Annexure C.

24.Thus, I am reasonably satisfied that the alterations claimed in relation to the new bedroom are not reasonably required having regard to Mrs Bray’s impairments and the difficulties she faced freely moving about her home during periods of increased impairment. It is therefore unnecessary to go into detail about the reasonableness of other works associated with the construction of the bedroom, for example, electrical work or the laying of carpet. Claims for compensation in relation to these alterations must, therefore, be rejected.

the laundry alterations

25.The alterations to the existing laundry include:

a)    removing the existing “narrow door shower recess”; [13]

[13] Exhibit A2, Annexure A, p3.

b)    constructing a wider “shower recess/toilet”;

c)    tiling the shower recess;

d)    fitting a hand-held shower;

e)    fitting a swinging door;

f)     fitting safety rails;

g)    removing the existing stainless steel laundry sink;

h)    installing a “hand basin/vanity/hot and cold taps etc”;

i)     plumbing associated with shower;

j)     plumbing associated with hand basin; and

k)    fitting an exhaust fan.

26.Mrs Bray asserts that these alterations were necessary and were reasonably required as a result of her increasing impairments following surgery and as a result of deterioration of her compensable conditions. She says that she requires support from her husband when accessing the shower. Mrs Bray asserts that this could not be done safely using the original bathroom (with a hand-held shower over a bath) or using the existing shower cubicle in the existing laundry. In Mrs Bray’s submission the shower cubicle was too narrow, the shower sliding door was too difficult and narrow and she was unable to access the sink/vanity adjacent to the bathroom because the doors were too narrow.

27.Having regard to the nature of Mrs Bray’s impairment, and the duration of her convalescence post-surgery when she was required to use a wheel chair in her house, I am prepared to accept that alterations to the laundry shower facilities are reasonably required to the extent of the recommendations made by Mr Haughton, Ms Sanson and Dr Welberry.  This is despite the absence of evidence concerning the actual dimensions of the previously existing laundry shower cubicle and door. Thus, I am reasonably satisfied that replacing the laundry shower cubicle sliding door with a swing door, installing a hand-held shower on a slide with a diverter, and fitting three safety rails (25(d), (e) and (f) above) were alterations that are reasonably required having regard to Mrs Bray’s impairments and the duration of her convalescence and increased impairments following hip surgery.

28.I do not accept, however, that there was any reasonable requirement to rebuild, tile and re-plumb the laundry shower cubicle, and install an exhaust fan. Mrs Bray’s claims for these alterations are not made out. Her evidence is that the previous shower cubicle was removed and a new larger shower cubicle was rebuilt to suit her requirements. There is no evidence to support alterations of this kind. Mr Haughton, Ms Sanson and Dr Wellberry make no such recommendations. Thus, I am reasonably satisfied that any such alterations (25(a), (b), (c), (i) and (k) above) are not reasonably required having regard to Mrs Bray’s impairments, and her claims in that regard must be rejected.

29.I accept that alterations to the laundry sink are reasonably required. Mrs Bray gave evidence that the original steel sink was too high for her. Mr Haughton, Ms Sanson and Dr Wellberry recommended replacing and lowering the taps to the existing laundry trough. I accept that such alterations were reasonably required. Furthermore, as Mrs Bray was not able to access the vanity room and sink adjacent to the house bathroom using a wheel chair because the doors were too narrow, I am reasonably satisfied that alterations were reasonably required for her to access that room or a similar facility, such as the laundry, using a wheel chair. I note that Mr Haughton and Ms Sanson reported well in advance of the hip surgery Mrs Bray underwent in November 2006 and did not address any increased impairment during periods of subsequent convalescence. For these reasons I accept that alterations to the laundry sink (25(g), (h) and (j) above) are reasonably required by Mrs Bray, having regard to her impairments and the periods of convalescence following surgery in which she was required to use a wheel chair in her home.

the kitchen alterations

30.The alterations Mrs Bray claimed in the kitchen area are:

a)    remove existing benches etc and fit benches at correct height;

b)    fit sliding drawers;

c)    move wall oven;

d)    move bench top hotplates;

e)    move exhaust fan;

f)     relocate fridge;

g)    replace kitchen sink and taps;

h)    build in dishwasher under the bench;

i)     tiling;

j)     move power points for fridge, microwave and dishwasher;

k)    adjust wall oven cabling;

l)     relocate exhaust fan and plug;

m)  relocate and rewire down lights;

n)    remove old sink and plumbing;

o)    fit new sink and taps; and

p)    replace dishwasher.

31.Mrs Bray asserts that these alterations and appliances were reasonably required having regard to her impairments and the unsafe condition, for her, of the original kitchen. Her evidence is that she experienced difficulty using the original kitchen: the benches and sink were too high and using them elevated the pain in her shoulders; the kitchen cupboards were awkward and bending to access them increased her pain; the oven was too low for her to use safely; the bench tops and layout were not suitable and prevented her sliding heavy items; and the refrigerator shelving was at the wrong height and was difficult for her to access. Mrs Bray stated that she could undertake only minimal tasks in the kitchen before and after the alterations, although the alterations have made the kitchen easier for her to use and she can now do more than previously.

32.Mr Haughton, Ms Sanson and Dr Wellberry recommended alterations to Mrs Bray’s kitchen. There is very scant evidence concerning the original configuration and specifications of the kitchen benches, sink, stoves and refrigerator. Doing the best with the available materials, it appears that the original kitchen included a tower stove, a slow combustion stove, a wall mounted microwave oven, a free standing dish washer, a free standing refrigerator, and bench tops on either side of a sink. Recommendations made by Mr Haughton,  with which Ms Sanson and Dr Wellberry agreed, consisted of lowering the bench tops, replacing existing cupboards with drawers, relocating the dish washer, installing bench top hot plates, relocating and raising the oven height, and installing a sink with a draining area flush with the bench top.

33.Plainly enough the alterations Mrs Bray commissioned far exceed Mr Haughton’s recommendations. Even though it can be accepted that Mrs Bray may have required some alteration to the previous kitchen configuration to better accommodate her impairments, it does not follow that her kitchen required renovations of the kind and extent she commissioned.

34.I do not accept Comcare’s submission that Mrs Bray is so impaired that she cannot use her kitchen at all, thereby negating any need for alterations, or rendering them unreasonable. While the extent of her ability to use kitchen facilities, preparing meals and cleaning for example, is not entirely clear, and there is conflicting evidence on this point, as it appears to me, Mrs Bray is able to use her kitchen and regularly does so, at least to the extent of assisting her husband to prepare meals and wiping down benches. Furthermore, I am reasonably satisfied that she performs many of these activities standing up for short periods; her own evidence is that, other than the periods of convalescence following surgery, she does not use a wheel chair inside her house. I accept Mrs Bray’s submission, noting the various reports of Dr Champion for example, that it is medically desirable and beneficial for her to undertake activities of this kind.

35.Having regard to these factors and Mrs Bray’s impairments over time, I am reasonably satisfied that the kitchen alterations Mr Haughton recommended are reasonably required. To be clear, the following alterations are, I am satisfied, reasonably required:

(i)reducing the height of kitchen bench tops;

(ii)replacing existing cupboards with drawers;

(iii)replacing the existing sink and taps with a flush sink with lever taps;

(iv)relocating the dishwasher;

(v)installing a wall oven with suitable doors;

(vi)installing bench top hot plates; and

(vii)associated electrical cabling and connections.

36.Thus, considering Mrs Bray’s claim, I find that the alterations at 30(a), (b), (c), (d), (g), (i) insofar as the tiling was required as a result of the reduction in bench height, (h) insofar as relocating the dishwasher required fixings and fittings, (j) insofar as relocating the dishwasher required a new power point, (k), (n) and (o) are reasonably required, having regard to Mrs Bray’s impairments. There is insufficient evidence before me to determine whether relocating the fridge, the microwave oven, the down lights and an exhaust fan are reasonably required. It follows that I am unable to be reasonably satisfied that claims in relation to those alterations are made out. There is no evidence to support Mrs Bray’s claim in relation to a new dishwasher. It follows that the alterations claimed at 30(e), (f), (j) in part, (l), (m) and (p) are not made out and must be rejected.

the wheel chair and walking frame access alterations

37.The alterations Mrs Bray claimed in this category are as follows:

a)    path from carport to rear porch;

b)    ramp from path to porch;

c)    ramp from porch to garden;

d)    ramp from porch to kitchen and sunroom;

e)    ramp from porch to bungalow shower and bathroom;

f)     covered ramp from sliding door with non-slip timber deck; and

g)    repair front door concrete, re-lay new safe surface.

38.Mrs Bray asserts that each of these alterations is reasonably required as a result of her impairments. Mrs Bray gave evidence that prior to the installation of the new path from the carport to the porch, she was able to walk on the adjoining grass to access the carport from the house or visa versa. In her submission, however, she would not be able to do this using a wheel chair.

39.There is very scant evidence concerning the original configuration and composition of paths linking the house and the carport. It appears likely that the existing path consisted of a gravel surface. If that is correct, it can be accepted that such a path may not be suitable for wheel chair access to the carport. Proceeding on that basis, I am satisfied that a paved path linking the porch to the carport is reasonably required in order to facilitate Mrs Bray’s access to transport by car using a wheel chair. Similarly, it appears likely that the existing path from the front of the house to the street consisted of cracked and uneven concrete. I accept that altering this path to provide an even surface may reasonably be required. The location and extent of the original area described as “front door concrete” in the claim is not clear. It is accepted that appropriate paths are reasonably necessary to enable safe movement from the house to car transportation. However, when one considers the plan of works completed, it is apparent that the paving work Mrs Bray commissioned is of greater extent than simply linking the porch to the car port and the front of the house to the street. The composite and paved path area extends to include an extensive paved area in which bins are located.[14] I am reasonably satisfied that extending the paving to include this area is not an alteration that is reasonably required having regard to Mrs Bray’s impairments. This is a matter that is relevant to take into account when determining the amount of compensation that is reasonable.

[14] See plan in Exhibit A4 and relevant photograph in Exhibit A5.

40.With regard to the ramps that have been claimed, I am satisfied that ramps connecting the path with the porch, the garden with the porch, the porch with the laundry shower, and the porch with the kitchen are reasonably required having regard to the extent of Mrs Bray’s difficulties with mobility and her reasonable need to access the laundry shower during periods of convalescence and increased impairment. I do not accept, however, that the new ramp and deck constructed as a part of the ‘bungalow’ at the rear of the house are alterations that are reasonably required in the circumstances of Mrs Bray’s impairments. I note in passing that the paving works Mrs Bray commissioned at the rear of her house extend beyond what may reasonably be required for access from the garden to the rear porch, and include an area of approximately 6 metres by 3.5 metres that may properly be described as a paved patio rather than simply a path or a ramp. I am not persuaded that the entirety of these alterations is reasonably required having regard to Mrs Bray’s impairments. These are matters of relevance to take into account when determining the quantum of compensation that is reasonable.

41.It follows, therefore, that of the alterations claimed, those set out at 37(b), (d) and (e) are reasonably required; those set out at 37(a), (c) and (g) are reasonably required in part; and that set out at 37(f) is not reasonably required and must be rejected.

what is the amount of compensation that is reasonable?

42.Considering the materials that are before me, there is difficulty determining the amount of compensation that is reasonable in relation to the alterations Mrs Bray reasonably required. The claim does not specify the actual cost of particular alterations Mrs Bray commissioned. Furthermore, in some cases the scope of the alterations carried out exceeds what is reasonably required in the light of Mrs Bray’s impairments and in those cases it would not be reasonable to compensate Mrs Bray for the entire cost.

43.I will proceed to do the best with the available material and evidence.

44.The new bedroom alterations are not compensable as they are not reasonably required. I have determined which of the laundry alterations are reasonably required. I am not able, however, to determine the particular cost attaching to these alterations. For that purpose it will be necessary to refer to the detailed invoices or receipts for those items. That matter will be remitted to Comcare. Similarly, I have determined which of the kitchen alterations are reasonably required, but I am not able to determine the precise cost attaching to each alteration. That, too, will be remitted to Comcare.

45.I have determined which of the path and ramp alterations are reasonably required. Costs attaching to each alteration appear on the claim; however, I am not able to verify whether those amounts are correct. Furthermore, three of the claimed alterations exceed what is reasonably required. The requirement is for paths and ramps suitable for wheel chair access, having suitable but not excessive dimensions (width and gradient). As the evidence concerning these works, including Exhibit A4 (which is not drawn to scale), is not sufficient to determine the actual dimensions of the paths and ramps Mrs Bray commissioned, it is not possible to determine with precision the extent to which the commissioned works exceed that which is reasonably required. In order to determine the appropriate proportion of the alterations that are required and the amount of compensation that is reasonable in each case it will be necessary to consider the precise dimensions of the works Mrs Bray commissioned and the basis on which invoices were raised for the work completed, for example on the basis of time, area or material costs plus a percentage. These matters will be remitted to Comcare for determination in a manner that is consistent with these reasons.

46.Finally, I will briefly address Comcare’s submissions concerning Mrs Bray’s relocation from Canberra to Wedderburn, and her purchase of a house in that town at a time when she was already impaired. Comcare asserts that the kitchen was not a fit or suitable kitchen for Mrs Bray, having regard to the nature of her impairments when she relocated in 2002. Mr Haughton reported in May 2003, soon after Mrs Bray moved into the house, that the kitchen required alterations in the light of Mrs Bray’s impairments.[15] Comcare’s submission is that it is not reasonable for Comcare to pay for alterations to a house that Mrs Bray purchased knowing that the kitchen was likely to be unsuitable.

[15] Exhibit A2, Annexure B.

47.One must consider all of the circumstances. It is a fact that Mrs Bray purchased a house that required alterations as a result of her impairments. The likelihood of her finding a house that suited her particular requirements without alterations is simply unknown. There is no evidence before me concerning the likelihood of Mrs Bray finding such a house. Mrs Bray explained her reasons for relocating from public rental housing in Canberra to private housing in Wedderburn. Essentially those stated reasons went to issues of affordability and lifestyle. It is not for me to comment on the reasonableness of her relocation. I note, however, that in relocating Mrs Bray removed herself from easy access to her treating doctors. Nevertheless, it is not reasonable to proceed on the basis that a person with impairments resulting from compensable injury is precluded from relocating from one place to another or from purchasing a house in the circumstances Mrs Bray has described. I note that subs 39(2)(f) contemplates circumstances involving claims under s39 following the disposal of property.[16] Even though there is no evidence that Mrs Bray’s circumstances are within the scope of that paragraph (no evidence was adduced concerning any compensation for alterations to Mrs Bray’s former residence in Canberra), plainly there is no bar to compensation in such circumstances.

[16] Safety, Rehabilitation and Compensation Act 1988 s 39(2)(f).

48.The question of reasonableness goes to the amount of compensation that is payable to Mrs Bray in relation to alterations that she reasonably required in her (then) new house, having regard to her impairments. On the present evidence I am not persuaded in the particular circumstances that her relocation from Canberra and acquisition of a house in Wedderburn that required alterations provides any reasonable basis to reduce the amount of compensation to which she would otherwise be entitled.

49.The assertion that Mrs Bray purchased the Wedderburn property in the knowledge that the kitchen would require alteration is not established. Mrs Bray’s evidence is that she thought that the kitchen would be suitable, but her health deteriorated. That evidence was not seriously challenged or contradicted by other material placed before me. For these reasons, I am not persuaded to accept Comcare’s submission.

50.I note, however, that the alterations that are presently in dispute exceed what is reasonably required in relation to Mrs Bray’s impairments. As it appears to me, the nature and extent of the works Mrs Bray commissioned are in part more consistent with renovations rather than alterations necessitated by impairment. Even if I accept that Mrs Bray believes that all of the works undertaken were and are required as a result of her impairments, it is not appropriate for her to decide upon the alterations to her home that she believes are necessary and then expect Comcare to compensate her for the costs. An objective assessment of alterations that are required by a suitably qualified person is necessary. As can be seen, two such assessments were made in Mrs Bray’s case. Although both assessments lack detail, in terms of particular specifications for example, neither assessment supports Mrs Bray’s assertion that the nature and extent of the alterations she commissioned to her home are all reasonably required. I am satisfied that they are not.

conclusion

51.The decision under review is varied to the extent that the alterations specified in these reasons are reasonably required. The matter is remitted to Comcare to determine the amount of compensation that is reasonable in each case.

52.The matter is, therefore, decided in a manner that is favourable to Mrs Bray. I was not addressed in relation to orders for costs during the hearing. The parties have 14 days in which to file submissions on that subject. If no submissions are received I will order that Comcare is to pay Mrs Bray’s reasonable costs as agreed or taxed.

53.There is liberty to apply within 28 days if there is further disputation concerning the apportionment or cost of particular alterations that I have found to be reasonably required.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.

Signed: ...........[Signed]...............................
  Demelza-Rose Gale           
  Associate

Date of Hearing  1 April 2009

Date of Decision  8 April 2009

Counsel for the Applicant:            Mr. S Pilkinton

Solicitor for the Applicant:           Pamela Coward Higgins Lawyers

Counsel for the Respondent:      Mr. D. Shillington

Solicitor for the Respondent:      Sparke Helmore