OLIVIA WALTON and COMCARE
[2003] AATA 547
•13 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] 547
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/381
GENERAL ADMINISTRATIVE DIVISION ) Re OLIVIA WALTON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date13 June 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) J Cowdroy
Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – back condition – whether applicant is entitled to have nursery furniture modified at the Department’s expense – whether claim relates to household services (section 29) or modifications to articles used by the employee (section 39) – whether a connection exists between the compensable injury and the need for the requested modifications – level of impairment
Safety, Compensation and Rehabilitation Act 1988
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Isley v Wattyl Australia Pty Ltd (1997) 75 FCR 1REASONS FOR DECISION
13 June 2003 Ms J Cowdroy, Member 1. This hearing relates to a decision made by the delegate of Comcare on 12 March 2002 which affirmed an earlier determination, dated 11 December 2001, that:
(a)Comcare is liable to pay for a freestanding clothes hoist at an approximate cost of $50.00;
(b)that Comcare is not liable to pay for the following items:
§ baby bath and hammock
§ height adjustment of purchased cot and change table
§ nappy service
§ hand held hose for baby bath
2. The decision was made pursuant to section 29 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
3. The applicant indicated prior to the hearing that she was no longer seeking the provision of a nappy service. A hearing before the Tribunal occurred on 26 March 2003. The applicant appeared and gave evidence. She called Mrs K Cheesman to give evidence. Mr C Clark of counsel appeared for the respondent. The T-documents, lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, were admitted into evidence as Exhibit E1, along with the following exhibits:
E2 Letter from Assoc Professor McPhee dated 22 October 2002
E3 Letter from Assoc Professor McPhee dated 4 December 2002
E4 Submission by the Applicant
4. The matter was decided on the oral evidence of the witnesses, the material in the T-documents and the exhibits, as well as the oral and written submissions of the parties.
Evidence
5. Mrs Cheesman, a friend of the applicant, gave evidence. Mrs Cheesman has a son, who was born on 7 January 2002. A range of baby equipment was either purchased or borrowed. None of the equipment required height modification. When the child was a newborn, she used a baby bath, which she filled by the use of a jug. The process necessitated the lifting of the bath for filling and emptying the bath. Mrs Cheesman only used a bath hammock when the family were away from home. She did not need or buy any special equipment to assist her with caring for her child.
6. Mrs Walton referred to her written submission during her evidence. Essentially, she injured her back whilst serving in the Australian Army in 1995, and the Department of Defence accepted liability for a back condition on 30 August 1996. She was medically discharged from the Army on 30 November 1999. Comcare had met the cost of the following items in connection with her back condition:
§ remedial massage
§ Panadol and other pain relief medication
§ sit-stand seat
§ household cleaning services
§ ergonomic study desk and chair
§ free standing clothes hoist
§ gym membership
§ the costs of modification to power steering in vehicle
§ lumbar rolls
7. Comcare had also met the cost of lumbar rolls, physiotherapy, acupuncture and chiropractic treatment. The applicant completed a rehabilitation program, which consisted of a Masters of Education course with the Queensland University of Technology. Comcare also met the cost of a computer and printer.
8. The applicant’s first child was born in January 2002. The items which the applicant wants Comcare to provide, or meet the cost of, consist of alterations to a cot and change table in the form of height modification and reimbursement for the purchase of a baby hammock and bath hose, at a cost of $28.00 and $7.40 respectively. The simplest and most effective method of raising the height of the cost is by the provision of two additional cot mattresses at a cost of $72.95 each. The applicant had received a quotation of $150 for modifying the height of the change table. The quotes were obtained some 18 months ago and may now have increased.
9. These items had been recommended by her treating doctor to alleviate ongoing pain in her back and to reduce the risk of further aggravation to her back condition.
Submissions
10. In submissions, the respondent pointed to the fact that a range of services had been provided to the applicant, commencing in 29 April 1999 with the provision of house cleaning services and, on 26 November 2001, the applicant made a further continuing claim for household services. That application was accompanied by an occupational therapy home visit assessment report of 29 November 2001 which made certain recommendations:
“the baby’s cot was too low and would not encourage optimal postures when transferring the baby;
that a baby bath hammock and a hand held hose for the baby bath be provided;
the change table was too low to allow maintenance of optimal posture.”
11. In reconsidering the primary decision, the delegate noted the applicant’s assertion that the Department “has a moral and legal responsibility to assist me in managing and coping with all aspects of my life that are affected by the back condition caused during my service in the Army” (T61, folio 120; T67, folio 131). Although the occupational therapist had recommended that such equipment would be of assistance for the applicant in managing her back condition, the delegate did not agree that it was reasonable for these items to be purchased by the Commonwealth. The respondent submitted that these items may reasonably be expected to be used, irrespective of injury.
12. In the written submission, the respondent referred to the delegate’s finding, in the light of the range of assistance the Department has already provided to the applicant, including domestic assistance and some aids and appliances, that “[i]t is not realistic or reasonable to expect the Commonwealth to assist [the applicant] in managing and copying with ‘all aspects of your life that are affected by the back condition’.” (T67, folio 132).
13. The respondent referred to a report from Associate Professor Bruce McPhee, spinal surgeon, who examined the applicant on 21 October 2002. He concluded that the applicant suffers from strain or soft tissue injury of the lower back resulting in non-specific back pain. In a further letter, dated 4 December 2002, Associate Professor McPhee noted:
“…it does not require a medical opinion to determine that the household assistance sought is related to Ms Walton giving birth and not directly related to her back condition. Adjustment of height to cot or change table may have an ergonomic effect in reducing her back discomfort but by and large I would have thought that the measures might have been universally sought by any new mother in order to make lighter work of child care.”
14. In the same report, Associate Professor McPhee noted that the applicant’s level of disability would appear to be somewhat disproportionate than what would be expected, given the underlying condition and objective findings on examination.
15. Mr Clark referred to Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (applied by the Federal Court in Isley v Wattyl Australia Pty Ltd (1997) 75 FCR 1) which discusses the principles of causation in a workers’ compensation claim. Applying those principles, the respondent contended that the need for household services arises not as a result of the injury to the applicant, but as a consequence of non-compensable occurrences, that is, the fact of pregnancy, childbirth and the resultant presence of an infant.
16. The applicant submitted that the determination to refuse to provide the equipment sought “is inconsistent, illogical and unreasonable”. She pointed to the fact that the Comcare had provided other services and equipment and that the decision paid little weight to the medical practitioners’ recommendations.
17. In her written submission, the applicant stated, in part:
“I would contend that Comcare and the Australian Government Solicitor are frustrated about the case because they realise that there is no logical reason for denying me the equipment. I am not even certain that Comcare had made their decision based on the correct section of the ACT. Even my layperson’s reading of the ACT would indicate that Section 29 refers to household services, for example laundry, cooking, cleaning and gardening, and not the provision of equipment and it therefore seems to me irrelevant to this case.”
18. Further, the applicant challenges the delegate’s comment that it was reasonable to expect her husband to fulfil a number of duties within the household. She pointed out that the delegate had erroneously contended that her husband was on leave for three months whereas it was only for a period of ten weeks. When working, her husband was not available to bathe the baby and change the nappies when required. She contended that if it were not for her back condition, she would not need the equipment and she pointed to the fact that none of her friends have required the equipment she seeks from Comcare.
19. The applicant relied on the occupational therapist’s report (T55) and various reports from Dr Catton which, she said, supported her contention that the items were needed to “enable me to perform these everyday tasks without causing even further injury to my back or risk aggravating the pain that I experience constantly” (E4, p8).
20. The applicant acknowledged that the equipment sought may also be beneficial to other persons, irrespective of injury, however she needed the equipment as a matter of necessity, rather than choice.
The Legislative Framework
21. The respondent contends that the issues to be resolved fall within the framework of section 29 of Safety, Rehabilitation and Compensation Act 1988 (the Act). It states:
“(1) Subject to subsection (5), where, as a result of an injury to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200.
(2) Without limiting the matters that Comcare may take into account in determining the household services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the extent to which household services were provided by the employee before the date of the injury and the extent to which he or she is able to provide those services after that date;
(b) the number of persons living with the employee as members of his or her household, their ages and their need for household services;
(c) the extent to which household services were provided by the persons referred to in paragraph (b) before the injury;
(d) the extent to which the persons referred to in paragraph (b), or any other members of the employee's family, might reasonably be expected to provide household services for themselves and for the employee after the injury;
(e) the need to avoid substantial disruption to the employment or other activities of the persons referred to in paragraph (b).
(3) Where, as a result of an injury to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of:
(a) $200 per week; or
(b) an amount per week equal to the amount per week paid or payable by the employee for those services;
whichever is less.
(4) Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to the following matters:
(a) the nature of the employee's injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;
(b) the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care;
(c) the extent to which it is reasonable to meet any wish by the employee to live outside an institution;
(d) the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
(e) any assessment made in relation to the rehabilitation of the employee;
(f) the extent to which a relative of the employee might reasonably be expected to provide attendant care services.
(5) Comcare is not liable to pay compensation under subsection (1) in respect of any week within the period of 28 days beginning on the date of the injury unless Comcare determines otherwise in a particular case on the ground of financial hardship or the need to provide for adequate supervision of dependent children.
(6) An amount of compensation payable by Comcare under subsection (1) or (3) is payable:
(a) where the employee has paid for the household services or attendant care services, as the case may be—to the employee; or
(b) in any other case—to the person who provided those services.
(7) Where Comcare pays an amount to a person who provided household services or attendant care services to an employee, the payment of the amount is, to the extent of the payment, a discharge of the liability of the employee to pay for those services.”
22. In submissions, the respondent submitted that the resolution of the issues involved can be expressed as three questions:
§ Do the provision of alterations to the change table and cot, and the provision of the bath hammock and hose come within the definition of “household services”;
§ If the provision of these alterations and items fall within the definition of “household services”, is it the case that the said alterations and items are “reasonably required” by the applicant:
§ If yes to 1 and 2, were such household services obtained as a result of an injury to an employee.
23. The applicant contends that the issues involve consideration of section 39 of the Act, which states:
“(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;
(c) any difficulties faced by the employee in gaining access to, driving or enjoying freedom and safety of movement in, a vehicle used by the employee;
(d) any alternative means of transport available to the employee;
(e) whether arrangements can be made for hiring the relevant aid or appliance;
(f) when the employee has previously received compensation under this section in respect of an alteration of his or her place of residence or a modification of a vehicle and has later disposed of that place of residence or vehicle—whether the value of that place of residence or vehicle was increased as a result of the alteration or modification.
(3) An amount of compensation payable under this section is payable:
(a) to, or in accordance with the directions of, the employee;
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c) if that cost has not been paid and the employee, or the legal personal representative of the employee, is unable, or refuses or fails, to make a claim for the compensation—to the person to whom that cost is payable.
(4) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (3) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.”
24. The respondent contended that even if the matter were considered under section 39 of the Act, rather than section 29 (which the applicant did not concede was appropriate), the applicant’s argument fails on two bases. The first is that the applicant’s impairment was not the effective or operative cause for the appliances being reasonably required. Secondly, in assessing whether such aids or appliances are “reasonably required” the Tribunal is required to have regard to the nature of the employee’s impairment.
25. Section 29 of the Act relates to the provision of household and attendant care services. The latter is not relevant to the present matter. “Household services” is defined (in section 4(1) of the Act) as follows:
“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.”
26. The modification of a cot and change table and the purchase of a bath hammock and hose do not fit comfortably within that definition. The term “household” is self explanatory and does not cause a problem. One could construe that the person carrying out the modifications to the cot and change table is providing a “service”, however even taking the most liberal interpretation of that word, it is difficult to construe a bath hammock and hose as fitting the definition. This is particularly so, given that the definition of household services includes examples such as cooking, house cleaning, laundry and gardening services. Whist this list is not exhaustive, it is clear that the subsection envisages the provision of a service via the medium of manual labour.
27. Section 39 refers to “modifications of a vehicle or article used by the employee” (section 39(1)(d)) and I consider this provision could encompass the modification of the change table and cot. Under section 39(1)(e) reference is made to any aids or appliances for the use of the employee and this could encompass the bath hammock and hose. I note that section 39 appears under Division 3 of the Act: Rehabilitation Programs. However, apart from the need to satisfy section 39(1)(b) in relation to rehabilitation, there is nothing in that section which specifically directs that the provision of alterations, modifications, aids or appliances must relate to rehabilitation, except in the case where a person is still undergoing rehabilitation program, in which case, regard must be had to the requirements of that program in considering whether the items are reasonably required. As the applicant has completed a rehabilitation program, that does not apply to her circumstances.
28. I consider it is appropriate to utilise section 39 in the present matter.
29. It is clear that sections 39(1)(a) and (b) are satisfied in that the applicant suffers an injury resulting in an impairment and for which she has completed a rehabilitation program. The question then becomes whether Comcare, as employer, is liable to pay compensation for the items sought. Of particular significance are the words underlined below:
“…the relevant authority is liable to pay compensation of such amount as is reasonable in respect of the costs, payable by the employee of (any alternation, modification, aid or appliance), being alterations, modifications or aids or appliances reasonably required by the employee, having regard to the nature of the employee’s impairment.”
30. I agree with the respondent that the nexus between the applicant’s need for the provision of equipment and modifications is the birth of her child. It is clear that section 39 envisages a direct link between the items covered in subsections (1)(c) to (e) and the injury. It is not reasonable or logical to extend liability to cover all aspects of the applicant’s life. Whilst I accept the applicant’s argument that her child is part of the household, it is not the case that the ambit of responsibility is cast so wide that the respondent should be liable for every activity in life which she considers may compromise her back condition.
31. I am mindful also of Associate Professor McPhee’s comments in his letter of 4 December 2002. Whilst he acknowledges that adjustment of height to cot or change table may have an ergonomic affect in reducing (the applicant’s) back discomfort, he goes on to state:
“By large, (sic) I would have thought that the measures sought might have been universally sought by any new mother, in order to make lighter work of childcare.”
32. Quite apart from issues of causation, I consider that the applicant’s argument also fails on another ground. As I am compelled to have regard to the nature of the employee’s impairment in deciding whether such alterations, modifications aids or appliances are reasonably required, I had regard to Associate Professor McPhee’s comments about the status of the applicant’s back condition. There are earlier reports in the T-documents which comment on the applicant’s back condition. Specifically, Dr C Catton, the applicant’s local medical officer, has provided several reports which largely recount the limitations described to her by the applicant. Associate Professor McPhee has specialist qualifications and his report is recent, therefore it is to be preferred to that of the local medical officer. Associate Professor McPhee stated as follows:
“…the level of incapacity is somewhat disproportionately greater than would normally be evident. A number of abnormal clinical findings were noted during the examination which could not be explained on the basis of organic low back disease. Such findings are usually associated with an emotional disturbance or chronic pain behaviour.”
33. He also states:
“Any work which requires heavy lifting or repeated deep bending or prolonged bending is likely to cause a temporary increase in low back pain. Physically her back condition should not preclude her from sedentary work or work requiring light manual tasks.”
34. The combination of the opinions expressed in those reports is that the nature and source of the applicant’s back pain is inexplicable. He suggests that psychological factors are involved “which have resulted in self imposed restrictions”. I also consider it significant that the applicant’s level of disability has been assessed at 10 per cent, which is at the lowest on the scale for compensation purposes.
35. Further, the lifting and placing of a baby in a cot and the changing of nappies on numerous occasions per day, coupled with perhaps two occasions when a baby bath needs to be filled and emptied, does not constitute heavy lifting, repeated deep bending or prolonged bending.
36. Based on the totality of the evidence before me, I find that the items sought by the applicant are not reasonably required, quite apart from the fact that I find they do not have the necessary nexus with her injury.
37. I should add that if I had utilised the provisions of section 29 in this matter, I would have made findings that the household services which she seeks are not reasonably required as a result of her accepted back condition.
38. Accordingly, I affirm the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Sarah Oliver
Associate
Date of Hearing 26 March 2003
Date of Decision 13 June 2003The Applicant Appeared in Person
Counsel for the Respondent Mr C J Clark
Solicitor for the Respondent Australian Government Solicitor
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