Munn and Comcare
[2005] AATA 1018
•14 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1018
ADMINISTRATIVE APPEALS TRIBUNAL No V2004/382
GENERAL ADMINISTRATIVE DIVISION
Re: STEVEN GRAHAM MUNN
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: Regina Perton, Member
Date14 October 2005
Place Melbourne
Decision:The Tribunal varies the decision under review as follows:
1.Comcare is liable to pay compensation for the cost of the mattress overlay; and
2.Comcare is liable to pay compensation for household services up to a maximum of 3 hours per fortnight.
The Tribunal otherwise affirms the decision under review in respect of the painting of the stairwell, the repair or replacement of the exercise bicycle, and the attendant care services.
(sgd) Regina Perton
Member
COMPENSATION ‑ household services ‑ attendant care services ‑ aids and appliances ‑ reasonably required ‑ decision varied
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 19, 39
Re Ryan and Australian Postal Commission (1980) 1 CCN 255
Re Todd and Department of Defence (1993) 18 AAR 329
REASONS FOR DECISION
14 October 2005 Regina Perton, Member
1. Steven Munn, who is 38 years old, was employed by the Department of Veterans’ Affairs as a claims officer. He suffered from a major depressive illness with generalised anxiety in the course of his employment, for which Comcare accepted liability. In September 2002, Mr Munn attempted suicide and suffered serious physical injuries as a result. These injuries were accepted as compensable. Mr Munn spent almost three months at the Austin Hospital and the Royal Talbot Rehabilitation Centre (the Royal Talbot) where he had treatment for spinal, leg and other injuries. He continues to be in pain and has trouble sleeping. Since Mr Munn’s return home, Comcare has funded various support services including attendant care, home help and membership of a gymnasium.
2. On 20 October 2003 and 21 November 2003, Comcare determined that it would not accept liability for several claims lodged by Mr Munn during August and September 2003 including:
·reimbursement of the cost of a mattress overlay;
·repair or replacement of an exercise bicycle;
·painting of a stairwell in his home;
·household services including housework and gardening; and
·attendant care for more than 2.5 hours per week
3. Upon reconsideration on 24 December 2003, the delegate affirmed the original decision that Comcare was not liable for the items listed above. Mr Munn lodged an application for review with the Tribunal on 29 March 2004. The application was lodged outside the prescribed time limit. However, with Comcare’s consent, the Tribunal granted Mr Munn an extension of time.
4. The Tribunal is required to determine whether Mr Munn is entitled to each of the items and/or services still in dispute under the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
5. At the hearing, Mr Munn represented himself. Mr J. Ferwerda of Counsel represented Comcare.
PERTINENT LEGISLATION
6. Section 16(1) of the Act confers liability on Comcare for the cost of medical treatment for a compensable injury. Section 16(3) of the Act allows for the payment of fees and charges where the required medical treatment involves the supply, replacement or repair of property used by the employee which is reasonably required. The term medical treatment is defined in s 4 to include treatment by medical practitioners, dentists, physiotherapists and other heath professionals and includes:
…
(f)the supply, replacement or repair or an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance…
7. Section 29 of the Act allows for compensation payments for household services and attendant care services:
29(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.
…
8. Attendant care services and household services are defined in s 4 of the Act:
attendant care services, in relation to an employee, means services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the employee.
…
household services, in relation to an employee, means 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.
9. Section 39 of the Act concerns compensation payable in respect of aids and the like.
39(1) Where:
(a)an employee suffers an injury resulting in an impairment; and
(b)the employee is undertaking, or has completed, a rehabilitation program or has been assessed as not capable of undertaking such a program;
the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee, of:
(c)any alteration of the employee's place of residence or place of work;
(d)any modifications of a vehicle or article used by the employee; or
(e)any aids or appliances for the use of the employee, or the repair or replacement of such aids or appliances;
being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee's impairment and, where appropriate, the requirements of the rehabilitation program.
(2) The matters to which the relevant authority shall have regard in determining the amount of compensation payable in a particular case under subsection (1) include such of the following matters as are relevant in that case:
(a)the likely period during which the alteration, modification, aid or appliance will be required;
(b)any difficulties faced by the employee in gaining access to, or enjoying reasonable freedom of movement in, his or her place of residence or work;
…
(e)whether arrangements can be made for hiring the relevant aid or appliance;
…
Mattress Overlay
10. Mr Munn told the Tribunal that he fractured several vertebrae in his fall. When he was at the Royal Talbot for rehabilitation, he was provided with a mattress overlay. Mr Munn said that he could not sleep on an ordinary mattress. Therefore, he purchased an overlay similar to the one he had in the Royal Talbot, for $299. He pointed out that his physiotherapist, general practitioner and an occupational physician who examined him at Comcare’s request were supported his need for the overlay.
11. Under cross-examination Mr Munn said that the Royal Talbot did not provide a mattress overlay when patients left the facility. He said that without the overlay he slept very poorly due to the pain; but things improved significantly after its purchase. He said that he had not discussed the purchase of the overlay with his treating health practitioners before buying it, but did discuss it with those at the Royal Talbot before his discharge.
12. Mr G. Bell, Mr Munn’s physiotherapist, stated in a letter to Comcare dated 13 November 2003:
…
The mattress overlay is essential because Mr Munn has a hypersensitivity problem due to damage to the nerves that affects his right leg in particular so that harder surfaces in the bed cause particular irritation and stir up the hypersensitive reaction that he has in that leg. Again, I feel this is an essential part of his rehabilitation that can facilitate far better sleep patterns for Mr Munn and good sleep has significant impact on his rehabilitation.
13. Mr Munn’s general practitioner, Dr M. Muniratna, provided the following statement on 4 March 2004:
Mr Steven Munn purchased a mattress overlay – similar to the one used at Royal Talbot. This has helped in his recovery, and is able to sleep.
14. Dr J. M. Lange, occupational physician, in a report prepared for Comcare’s solicitors on 5 September 2004, gave the following response to a question as to whether Mr Munn is reasonably entitled to the cost of the mattress overlay, given his compensable injuries:
…
This gentleman stated that he spends a considerable period of time in bed, which may well be for psychiatric reasons as well as physical. He does have spinal fusion and in view of his considerable injuries I do not feel that it is unreasonable that he have a comfortable supportive mattress or mattress overlay and as such, I believe that it is reasonable and related to his multiple injuries.
15. Mr Ferwerda submitted that the mattress overlay was not medical treatment as defined in s 4 of the Act, and therefore s 16 of the Act was not applicable. The Tribunal accepts that analysis. Mr Ferwerda conceded that s 39 may be applicable but argued that the evidence that it is reasonably required is deficient. He cited Re Ryan and Australian Postal Commission (Perth)(1980) 1 CCN 255 as authority that the mattress overlay was not an aid. In that case, the Commonwealth Employees’ Compensation Tribunal determined that an accident victim was not entitled to compensation for a new bed and mattress but was entitled to a recliner chair.
16. The Tribunal finds Mr Munn’s evidence as to the reasons for the purchase of the overlay and its ongoing therapeutic effect convincing. He indicated that he had a similar overlay during rehabilitation at the Royal Talbot. Mr Munn’s evidence was supported not only by his general practitioner and physiotherapist, but also by the occupational physician engaged by Comcare. The Tribunal notes that it would be impractical to hire an overlay, taking into account the nature of its construction and health issues relating to such items. While Re Ryan may well have involved disallowing the cost of a bed or mattress under the previous legislative regime, the Tribunal notes that the applicant in that case was allowed the cost of a recliner chair, which facilitated his being able to rest in a comfortable position. It is therefore not convincing authority with regard to the overlay.
17. The Tribunal finds that the mattress overlay is an aid or appliance for the purposes of s 39 of the Act. Taking into account the nature of Mr Munn’s impairment and the positive contribution of the overlay to his ability to sleep comfortably, the Tribunal is satisfied that Comcare should reimburse Mr Munn for the cost of the purchase of the mattress overlay.
Indoor Exercise Bicycle
18. Mr Munn told the Tribunal that he bought the indoor exercise bicycle about two or three years before he suffered his injuries. He said that he did not use it often prior to his injuries although he used to do a lot of cycling outdoors. He said that after leaving the Royal Talbot, he used it on most mornings to improve his general fitness and build up his wasted muscles of his left leg. The bicycle has a fully upholstered seat, unlike many of those at a gymnasium. He said that it broke down after a few months of intensive use. He does not know exactly what repairs are required or how much it will cost to repair. Mr Munn pointed to letters from Dr Muniratna and Mr Bell supporting his need for an exercise bicycle. However, he conceded that the letters had been written at his request as part of his claim for the bicycle repairs. He also acknowledged that he had not sought their advice before he began using the bicycle, so that the use of the indoor bicycle had not been an official part of his rehabilitation program. He said, however, that both of them were supportive of him continuing its use, as it had been helpful. Mr Munn said he had not seen Mr Bell for several months due to transport difficulties. He conceded at the time of the hearing that Comcare had not rejected his outstanding request for membership of a gymnasium.
19. Mr Bell, in his letter of 13 November 2003 cited above, stated:
…
Regarding the exercise bike, Mr Munn has been using this on a daily basis when it was working and interspersing this with exercises that he does at home and coming to the pool. Again the exercise bike is an essential part of his rehabilitation and I believe it has also reduced the amount of physiotherapy input he has required…
20. Dr Muniratna, in a statement dated 18 April 2005, indicated that Mr Munn will benefit from indoor use of bike to improve his leg strength.
21. Dr Lange stated the following in his report of 1 September 2004:
This gentleman does require some form of exercise which could be in the form of walking or swimming. He does not specifically require an indoor exercise bike, but some form of exercise would be of value in increasing his stamina and allowing him to continuing his rehabilitation. If an exercise bike would assist in his rehabilitation then I do not feel it is unreasonable that he utilise this form of equipment. It would be more appropriate for him to leave the house and attend a gym or pool, as this serves two purposes, exercise and socialization.
22. Mr Ferwerda submitted that Mr Munn had been granted funding to attend a gymnasium and a swimming program at a leisure centre that is 1.25 kilometres from his home and was seeking compensation to continue that program in the future. He stated that the evidence falls well short of establishing that the exercise bicycle is an aid or appliance given the nature of Mr Munn’s impairments. He also pointed out that Mr Munn’s treating health professionals had provided support for his request after the breakdown of the exercise bicycle, rather than it being suggested by them as part of his rehabilitation. Mr Munn submitted that it was not reasonable to expect him to attend a gymnasium seven days a week. He said that when the bicycle was still operable, he had used it in the morning to warm up and mobilize his body. He also pointed out that when the health professionals were told what he was doing, they were supportive.
23. On the evidence before it, the Tribunal is not satisfied that it is appropriate to award compensation to have the indoor bicycle fixed. Mr Munn does not know what repairs are needed or the cost of such repairs. He purchased the indoor bicycle some years prior to sustaining his injuries, rather than as part of his rehabilitation program. The Tribunal notes that he was also funded for a gymnasium program, during the period when he was able to use the bicycle, providing him with the opportunity for exercise. The Tribunal also notes that there is an outstanding decision about the further funding of the gym program. In light of these circumstances, the Tribunal affirms the decision to refuse compensation for the repairs to the indoor bicycle.
Painting of Stairwell
24. Mr Munn said that he believed that painting the stairwell should be considered a household service. The house is now about nine years old and the stairwell is scuffed. Mr Munn said that he had partly painted it before he sustained his injuries. He said that he used to be a handyman and had done his own painting, paving etc. Mr Munn pointed to his general practitioner’s comments in support of his claim. Dr Muniratna, in a statement dated 18 April 2005, stated that his patient is unable to climb ladders to paint his stairwell.
25. Mr Ferwerda submitted that painting of the stairwell does not fall into the definition of household service. He cited Re Todd and Department of Defence (1993) 18 AAR 329 as a relevant authority. In Re Todd, the Tribunal found that house painting did not fall within the definition of household services:
…
In the Tribunal’s opinion house painting/decorating does not fall within the definition of “household services’ in s 4(1) of the Act. That definition includes ordinary domestic services, such as cooking, house cleaning, laundry and gardening services (which are expressly included) and analogous services, that are required on a regular or relatively frequent basis for the “proper running and maintenance” of the relevant household. It does not include services in the nature of home improvements, such as painting/decorating. This interpretation is reinforced by the wording of s.29(1) of the Act which contemplates weekly payments of compensation for household services.
26. The Tribunal concurs with the interpretation of household services in Re Todd. It finds that Mr Munn is not eligible for compensation for painting of the stairwell.
Household Assistance
27. Mr Munn stated that his need for household assistance was ongoing. He said that he needed assistance with cleaning the bathroom and toilet, vacuuming, cleaning other than dishwashing and gardening.
28. Under cross-examination Mr Munn said that he has shared his house with Mr J. Tran for six or seven years. They are the only persons living there. Mr Munn says he co-owns his home with another person. Mr Tran, who is now working full‑time, pays rent of $400 per month. Mr Munn said that Mr Tran does the cleaning, vacuuming etc while he does much of the cooking and the dishes. Mr Tran has sold his car and now uses Mr Munn’s car. Mr Munn conceded that his physical capabilities had improved significantly since the injuries but had plateaued over the previous six months. He indicated that his general practitioner had not initiated the request for home help but had written the supportive letter at his request. Mr Munn estimated that he needs about three and a half hours per week in household assistance.
29. Ms C. Barbar, an occupational therapist, provided a report to Comcare on 14 November 2003. Ms Barbar recommended that Comcare provide two hours home help per week for the heavier domestic tasks such as vacuuming, mopping, cleaning the shower and toilet etc. She made the recommendation despite acknowledging that Mr Munn’s former partner, Mr Tran, now his tenant, shared the applicant’s house and undertook most of the domestic chores. She noted that Mr Tran had deferred his studies to assist Mr Munn. Ms Barbar indicated that Mr Munn should be contributing to the lighter chores but needed help for the heavier work.
30. On 1 July 2004, Dr Muniratna reported as follows:
Mr. Steven Munn is still on treatment for multiple injuries and requires home help and attendant care. He is unable to do his daily chores other than washing dishes. He is unable to drive due to drowsiness on medication.
31. On 18 April 2005, Dr Muniratna stated that Mr Munn …will need home help for heavy chores and gardening.
32. Ms S. Bitton, a landscape architect, in a quote dated 22 June 2004, stated the following:
I have assessed the garden located at….Thornbury… which comprises a Japanese style garden with a fish pond at the back and two small zones located at the front and side of the property.
I estimate that to maintain a garden this size and characteristics requires an approximate of three hours a week for general maintenance. The scope of the works is as follows:
‑general tidy up,
‑ watering,
‑ weeding,
‑ pruning of shrubs,
‑ fertilising,
‑ mulching
‑ some occasional replacement of sick/weather damaged plants...
33. In a report dated 12 July 2004, Dr C. P. Wijesinghe, a psychiatrist, provided a history of Mr Munn’s condition since he first saw him on 4 August 2001. He indicated that Mr Munn suffers from major depression, which at the time of the report was moderate. He remains on medication. While Dr Wijeshinge indicated an inability to comment on his physical disabilities, he commented that:
…
Mr. Munn can perform all of the basis activities of daily living but with the limitations imposed by the pain and disability caused by his physical injuries, for instance he is not able to perform any of the heavy housework.
34. Dr Lange, in his report of 1 September 2004, stated:
…
In regard to the gardening services I am at a loss to understand how one would require there hours of gardening “for a small courtyard which has minimal lawn area and a small formal Japanese style garden”. This claim for three hours of gardening per week appears to be totally out of context with the normal type of gardening arrangements required for the courtyard style garden outlined. This gentleman does not have a capacity to undertake heavy lifting or repeated bending and some limited form of gardening will be required, but I strongly question the need for three hours per week and this should be independently assessed by an expert in the area rather than by a sub-contractor attempting to obtain work.
…
In regard to this gentleman’s physical activities he does require assistance with heavy cleaning. If this gentleman were to live alone he would require assistance with heavy housework and house cleaning. The current level of home help appears to be adequate considering Mr Munn’s physical status, previous capacity to work in a shop and utilize public transport…
35. Mr Ferwerda submitted that Mr Munn’s physical condition has improved. He commented that Mr Munn’s former partner, Mr Tran, who is now his tenant sharing the house, should be doing the heavier housework that Mr Munn is incapable of doing.
36. All of the health professionals providing reports on Mr Munn, whether at his behest or that of Comcare, agreed that he needs assistance to do the heavier household tasks such as cleaning floors, the bathroom etc. The Tribunal is satisfied that he does need help for such matters.
37. Comcare has refused to fund household services after 20 November 2003, primarily on the basis that Mr Tran should be undertaking those tasks. Taking into account the matters set out in s 29(2) of the Act, the available evidence indicates that Mr Munn was relatively self-sufficient prior to his injuries but is now unable to undertake any more than a few light household tasks. He shares the house with one other person, Mr Tran. Mr Tran is a former partner, who remains as a tenant, despite the relationship having ended. Mr Tran now works full-time. He has assisted Mr Munn with household and attendant care services in the past, but according to Mr Munn, is not able to do as much as he did before due to his work and other commitments. The Tribunal is of the view that it is unrealistic to expect a tenant, albeit a long term one, who shares a house with a person who is not his partner or relative, to be responsible for all of the heavier housework. In the Tribunal’s view, it is reasonable to expect Mr Tran to do fifty per cent of that housework as one of two adults sharing a house. The Tribunal finds that Mr Munn should be paid compensation for household services until his physical capacity improves.
38. Mr Munn claimed that he should receive one hour of gardening assistance per week and two and a half hours assistance per week for the other household tasks he can no longer undertake. He stated that before his injuries he spent three hours a week in the garden, but that he now accepts that one hour’s work would be sufficient to keep it in a reasonable condition. Ms Barbar, in her report of 14 November 2003, recommended that two hours per week of home help be provided. She also recommended that Mr Munn receive training in task modification and simplification by the use of appropriate tools and by breaking larger tasks into smaller ones. Dr Muniratna, in her letters of 1 July 2004 and 18 April 2005, indicates that her patient still needs that support. Given the Tribunal’s view that Mr Tran should take joint responsibility for household tasks, the Tribunal is of the view that two hours per fortnight for general household tasks and one hour per fortnight for gardening services is a reasonable level of support for Mr Munn. Therefore, the Tribunal decides that Mr Munn be paid compensation for household services up to three hours per fortnight by Comcare, until further reviews by health professionals indicate that these services are no longer required. The Tribunal sets aside the determination that household services not be compensated after 21 November 2003.
INCREASED ATTENDANT CARE SERVICES
39. Mr Munn said that he cannot drive due to the effects of his medication and the loss of flexibility in his right foot. He said that Mr Tran used to provide his transport but cannot assist to the same degree due to his full‑time work. He said that the nearby bus only comes once an hour; so it takes him a long time to get to medical appointments, physiotherapy, the gym etc. He stated that the current two and a half hours personal care was insufficient as it did not make allowance for the travel time for leisure activities such as going to the cinema. Mr Munn also added the time required to travel to the gymnasium, but did concede that he had not been going for some time.
40. Ms Barbar, in her report of 14 November 2003, recommends that two and a half hours of personal care be funded by Comcare. Dr Lange, in his report of 5 September 2004, comments that:
…
The issue of attendant services beyond two and a half per week also appears to be counter-productive. Mr Munn does have a physical capacity to undertake certain activities such as a walk around the block and working for five weeks at a city shop. I understand that he was capable of utilising public transport at that time, which was approximately 12 months ago, and I would expect his condition to have improved over a 12 month period.
41. Attendant care is defined in s 4 of the Act as services that are required for the essential and regular personal care of the employee. While undertaking leisure activities outside the home is undoubtedly beneficial to a person’s rehabilitation, the Tribunal is not satisfied that the provision of transport to get to the cinema meets the legislative definition of attendant care. The Tribunal accepts Dr Lange’s and Ms Barbar’s professional assessments as to the appropriate level of attendant care. There is no other expert opinion suggesting a different level of attendant care. The Tribunal affirms Comcare’s decision to limit attendant care to a maximum of two and a half hours per week.
DECISION
42. The Tribunal varies the decision under review as follows:
1.Comcare is liable to pay compensation for the cost of the mattress overlay; and
2.Comcare is liable to pay compensation for household services up to a maximum of 3 hours per fortnight.
The Tribunal otherwise affirms the decision under review in respect of the painting of the stairwell, the repair or replacement of the exercise bicycle, and the attendant care services.
I certify that the forty‑two [42] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 20 April 2005
Date of decision: 14 October 2005
Applicant: Self‑represented
Counsel for Respondent: Mr J. Ferwerda
Solicitor for the respondent: Dibbs Abbott Stillman
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