Nediljka Ergarac and Comcare
[2014] AATA 592
[2014] AATA 592
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4755
Re
Nediljka Ergarac
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 22 August 2014 Place Canberra The decision under review is affirmed in so far as the hours of domestic and gardening assistance the applicant is to receive. However, the decision is varied in relation to the period that the decision applies to, extending the application of the reviewable decision until 31 December 2014, rather than 30 June 2014.
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RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth employee – whether injury resulted in reasonable requirement for household assistance and gardening assistance – amount of assistance required
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) section 4(1), 29
Cases
Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25
Click here to enter text.
REASONS FOR DECISION
RM Creyke, Senior Member
Ms Nediljka Ergarac, born 1949, injured her back at work and has not worked since about May 1995.
Ms Ergarac has an accepted condition of ‘degeneration/thoracic/lumbar intervertebral disc and adjustment reaction’ with a date of injury of 26 April 1995.
Ms Ergarac has been provided with home help since 1998, and with gardening assistance since 1998. Ms Ergarac sought to increase the level of assistance.
Comcare in its reviewable decision, dated 4 July 2013, accepted liability to provide household services for two hours a week, and gardening services for two hours a fortnight only, for the period up to and including 30 June 2014.
On 19 September 2013, Ms Ergarac sought further review of that decision by the Tribunal. The matter was heard in Canberra on 4 July 2014.
Background
Ms Ergarac had been employed as a housemaid by the Australian National University until mid-April 1995 when she injured her back at work. After attempting to work for another two to three weeks, and finding it increasingly difficult, her general practitioner, Dr Siva, on 26 April 1995 advised her to have a CT scan. On receipt of the results, Dr Siva advised her to cease work. Comcare has accepted liability for this injury.
Since she ceased work, Ms Ergarac has undergone physiotherapy, used a Tens machine, had chiropractic treatment and hydrotherapy, been involved in an exercise program, tried magnetic therapy, had pain management advice and counselling, attended two sessions with a psychiatrist, and had seen psychologists.
Despite these efforts, which have now largely ceased, Ms Ergarac has been left with constant pain in the left side of her lower back, an occasional aching pain down the left lower limb, and occasional thoracic pain.
Ms Ergarac’s ex-husband lives in the same dwelling but the couple have separated and largely live separate lives. Her husband has multiple health conditions. Ms Ergarac has three adult children. Her two daughters can only help her on occasions because of their own commitments and in one case, for health reasons. Ms Ergarac’s son visits daily when her pain is bad to assist his mother.
The house in which Ms Ergarac lives has 3 bedrooms, one bathroom with a separate toilet, one main living area, and a kitchen and laundry. The house has a large garden: the front garden has large trees, a grassy area and plants in pots; the back garden has an area of lawn, many shrubs and bushes, including fruit trees, and a vegetable patch.
Ms Ergarac said prior to her injury she did the majority of domestic tasks, and much of the gardening. However, her ex-husband did assist with the heavier gardening tasks. Since the injury she is restricted in both household and gardening tasks. She does light gardening, including watering and some pruning, but says that by her standards her vegetable garden is neglected. The gardening assistance provided by Comcare takes care of the heavier mowing, digging and pruning tasks. Her ex-husband also assists although he has health problems and is now 69 years of age.
Ms Ergarac cooks, but chooses easy meals, washes up, and cleans up small messes. She occasionally has help with the heavier domestic tasks from her ex-husband and regularly from the service provider. She occasionally needs assistance unloading the washing machine, and taking the laundry to the line. She does not iron. Her ex-husband will drive her to the shops and helps with the shopping. Ms Ergarac says that in addition to the Comcare provided household assistance for two hours a week, she funds an additional one hour a week of assistance.
Ms Ergarac maintains high standards of order, cleanliness and tidiness. As she said:
My traditional and religious values are playing very important and significant role in my life. My house and garden are my pride, pleasure and enjoyment. They represent my life and my values. I loved to do everything. I enjoyed in everything I did.
In other words, as she said good household and garden maintenance were culturally important to someone like her from a Serbo-Croatian background.
Ms Ergarac maintains that she needs a daily cleaner for two hours a day, or at least twice a week for two to three hours, and gardening assistance once a week for at least three hours. She says she is allergic to dust, tobacco and mould and relies on Ventolin or a puffer if she has an attack.
On 12 November 2013 Ms Ergarac’s current general practitioner, Dr Anna Ostberg, applied for renewal of household and gardening services on behalf of Ms Ergarac. Dr Ostberg recommended 3 hours per week of cleaning assistance and 2 hours per week of gardening assistance.
Ms Clare-Louise Da Re, an occupational therapist, undertook an Activities of Daily Living Assessment recorded in a report dated 12 June 2013. She recommended that two hours a fortnight of household assistance and two hours of gardening assistance per fortnight was reasonable. She also considered it was reasonable for Ms Ergarac’s ex-husband to take responsibility for maintenance of the shared parts of the house. Ms Ergarac disagreed with that assessment.
Ms Nicole Perks, Workplace Occupational Therapist, provided a functional assessment report on Ms Ergarac, dated 3 January 2014. Ms Perks concurred with a report by Ms Robyn Schellenberger, general surgeon, on 4 April 2000 that Ms Ergarac was more capable than she believes and is self-limiting for fear of exacerbation. At the same time, she conceded that Ms Ergarac would be ‘prone to progressive lumbar disc degeneration and spondylosis with time and age’. She also found that Ms Ergarac would have permanent restrictions due to her back injury.
Ms Perks recommended that the existing regime of two hours household assistance a week and two hours gardening a fortnight should continue until Ms Ergarac had tried a Pilates program and had seen a psychologist, specifically relating to pain management. She recommended that an occupational therapist should coordinate and monitor the proposed rehabilitation program and that there be an assessment by a geriatrician to assess the effects of Ms Ergarac’s physical decline due to ageing on her needs for assistance.
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 29 provides for Comcare to pay for a percentage of the cost of household services, defined in section 4(1) of the Act to include ‘house cleaning … and gardening services that are required for the proper running and maintenance of the employee’s household’.
Issues
The issues are:
·Whether Ms Ergarac’s injury has resulted in a reasonable requirement for household and gardening assistance (s 29);
·Is so, what is the amount of assistance required?
Consideration
The Act states in section 29(2):
4(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).
Ms Ergarac’s household comprises herself and her ex-husband.
The services for which compensation are provided are those that are ‘reasonably required in a particular case’. The particular case refers to the circumstances of Ms Ergarac. What is ‘reasonably required’ takes into account Ms Ergarac’s requirements based on her accepted injury, the size and nature of the house and garden and what assistance from other members of the household could be expected. It ‘will normally be a question of fact or degree depending upon the circumstances of the particular case’.[1]
[1] Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25 at [42].The test referred to in the extract related to the statutory term ‘unreasonable’ not ‘reasonable, but the extract is apt to describe what is ‘reasonable’ at law as well.
What is ‘reasonable’ is an objective test based on what would be required for the general population if they were suffering the same kind of injury and were in Ms Ergarac’s circumstances. That means, however, that although Ms Ergarac is a meticulous housewife, and maintains high standards domestically, Comcare is only expected to pay compensation for assistance to a reasonable standard. What is reasonable is a standard based on the practices in the general population. More exacting standards adopted by those in accordance with particular cultural norms, or by specific nationalities, are not taken into account.
In relation to the assistance that Ms Ergarac receives, the Tribunal notes that Ms Ergarac is indeed fortunate to have the willing assistance of her son. At the same time, the Tribunal also notes that the degree of assistance that ‘might reasonably be expected’ by Ms Ergarac’s ex-husband is a factor that Comcare is entitled to take into account. Ms Ergarac already relies on her ex-husband to assist with shopping, to drive her when she needs to go somewhere, and to do some of the heavier gardening and household tasks. He also manages his own bedroom. Despite his age and claimed health problems, he is living in the house, his ex-wife occasionally washes his clothes, and in return he can be expected to contribute to domestic tasks in return. He is not employed, so there is no question that the expectation would amount to a ‘substantial disruption’ to his employment or other activities (section 29(2)(2e)). The Tribunal finds that these forms of assistance can be expected to continue while his health permits.
What Ms Ergarac ‘reasonably requires’ has been the subject of numerous reports. There are differences between the most recent of those reports. Associate Professor Hope in his report of 12 January 2014, maintains that ‘there is an inability to clean the household or garden due to the inability [of Ms Ergarac] to lift, transfer, sit or stand for any useful period’. That was due in his opinion to her ‘severe lumbar spine functional reduction’.
The Tribunal notes that there is no reference to a lifting restriction of 2kg to which Associate Professor Hope refers in any of Dr Ostberg’s reports, nor in the reports of the occupational therapists Ms Da Re, and Ms Nicole Perks. So although the Tribunal accepts that Ms Ergarac may not be able to lift heavy items, the limit of 2kg is not medically established.
The Tribunal also accepts that Ms Ergarac has limits on the time she can comfortably stand, sit or walk. However, other reports do not support the sitting limit of 10 minutes, and the standing limit of 5 minutes on which Associate Professor Hope provided his opinion. Ms Da Re noted that Ms Ergarac was observed sitting in a lounge chair for ten minutes, standing for five to ten minutes and reporting she can walk for approximately 10 to 15 minutes. Ms Perks noted Ms Ergarac was able to sit at the kitchen table for approximately 30 minutes, was able to move freely within the house, reported she can carry out some gardening tasks in short bursts, and to squat and crouch when requested. Ms Ergarac also managed to sit for more than 30 minutes at the hearing without needing to change position.
Ms Perks reported that Ms Ergarac said she was ‘fearful about aggravating her lower back pain symptoms’ and the Tribunal accepts that Ms Ergarac has an understandable anxiety about triggering the occasional episodes of severe pain she experiences. However, her anxiety appears to have the effect that she is also limiting her ability to carry out functions which she is physically capable of doing. That would appear also to be the view of several of the medical and other specialists.
Although Associate Professor Hope referred to her severe lumbar spine functional reduction, that view is not accepted by Dr Pik, a neurosurgeon. In his report of 15 October 2013, Dr Pik found Ms Ergarac was suffering only ‘low-grade degenerative disc disease with shallow disc bulges’, and had no ‘focally compressive discs prolapse’. In other words, her condition was moderately disabling only and he did not recommend surgery.
The Tribunal prefers the view of Dr Pik to that of Associate Professor Hope since it accords better with the view of the most recent reports of the activities of daily living assessors, with the report of the surgeon, Dr Robyn Schellenberger in 2000, and with Ms Ergarac’s own statements that she limits her activities out of anxiety that she will trigger a painful episode.
The Tribunal notes Ms Perks’s recommendation that Ms Ergarac be examined by a geriatrician to assess the effect of ageing on her in the future, and that no change to her current assistance be made until Ms Ergarac has undertaken sessions of Pilates and sought the assistance of a psychologist who specialises in pain management. The Tribunal also notes that Comcare regularly assesses functional needs in order to tailor the requirements for domestic assistance with changes in a person’s ability.
The Tribunal believes that, given Ms Ergarac’s increasing age, and the degenerative nature of her injury that the recommendation that Ms Ergarac be assessed by a geriatrician is a sensible one. The Tribunal also notes that resumption of exercise in the form of Pilates and further rehabilitation assistance to Ms Ergarac in relation to pain management are also sensible.
At the same time, in terms of section 29(2), the Tribunal notes that Ms Ergarac lives in a modest sized house, and that when assessed, at a time when Ms Ergarac was only receiving the current level of assistance, that the house and garden were neat and tidy. That too suggests that the extent of assistance provided at present is reasonable.
The Tribunal notes that the state of the house and garden is in part a product of Ms Ergarac’s own efforts, assisted by her son and, to a lesser extent, her ex-husband. That too can be expected continue. This means that although the standards may not reach Ms Ergarac’s own standards, her standards of assistance are not those that are ‘reasonably required’ at law. If she wishes Ms Ergarac can continue to provide for an extra hour of household assistance at her own expense weekly to help her reach the higher standards which she finds satisfactory.
Accordingly, the Tribunal affirms the decision that Ms Ergarac is to receive two hours of domestic assistance per week and two hours per fortnight of gardening assistance. The Tribunal varies the decision under review, however, to extend the end date of the current decision till 31 December 2014, rather than 30 June 2014, to enable Comcare and Ms Ergarac to explore the recommendations made by Ms Perks and endorsed by the Tribunal.
I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member ..................[sgd]......................................................
Associate: Sarah Wardell
22 August 2014
Date of hearing 4 July 2014 Applicant In person Counsel for the Respondent Andrew Dillon Advocate for the Respondent Stuart Marris Solicitors for the Respondent Sparke Helmore
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