Plater v Scrappy Joes Metal Recycling Pty Ltd
[2025] NSWPIC 380
•6 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| CITATION: | Plater v Scrappy Joes Metal Recycling Pty Ltd [2025] NSWPIC 380 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| APPLICANT: | Joseph Roland Plater | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| RESPONDENT: | Scrappy Joes Metal Recycling Pty Ltd | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| MEMBER: | Cameron Burge | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| DATE OF DECISION: | 6 August 2025 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; domestic assistance; whether the gratuitous assistance claimed for the past and future is reasonably necessary; applicant suffered a serious injury which has resulted in multiple spinal surgeries and serious disability; in November 2017 the parties entered into consent orders for the provision of gratuitous assistance at the rate of 10.5 hours per week; applicant alleges since that time he has required assistance over and above that amount and claims over 30 hours per week; respondent asserts no more than 15.8 hours per week is reasonably necessary; parties agreed the threshold requirements for the operation of section 60AA were met; Held – the applicant has required gratuitous assistance at an average of 22.5 hours per week; respondent is ordered to pay the applicant’s partner for past gratuitous assistance for 22.5 hours per week at the relevant statutory rate. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered injury in the course of his employment with the respondent on 2. As a result of his injury, for the period from 7 November 2017 to date and continuing, the applicant has required reasonably necessary gratuitous domestic assistance provided by his partner, Ms Maryanne Thorman at an average rate of 22.5 hours per week. 3. For the above period, the respondent has been paying for gratuitous domestic assistance at a rate of 10.5 hours per week. 4. Pursuant to s 60AA of the Workers Compensation Act 1987: (a) the respondent is to pay the applicant’s gratuitous domestic assistance in the amount of $193,833.21 calculated as follows:
(b) the respondent is to pay for gratuitous care for 22.5 hours per week from 16 May 2025 to date and continuing at the relevant statutory rate from time to time; (c) payments made in accordance with Order 4(a) are to be paid to Ms Maryanne Thorman, and (d) payments made in accordance with Order 4(b) above are payable to Ms Maryanne Thorman, or the person otherwise providing the care. A brief statement is attached setting out the Commission’s reasons for the determination | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
.
STATEMENT OF REASONS
BACKGROUND
The applicant, Joseph Plater, brings these proceedings seeking payment of compensation for domestic assistance provided by his de facto partner, Maryanne Thorman.
There is no issue the applicant suffered injury in the course of his employment with Scrappy Joe’s Metal Recycling Pty Ltd (the respondent) which has necessitated the provision of some gratuitous care and assistance. In 2017, the Workers Compensation Commission issued consent orders providing the respondent would pay for gratuitous care for 10.5 hours per week from 4 April 2016 and for the cost of ongoing paid care provided to the applicant for 4.25 hours per week from 6 November 2017 and continuing. The payments in respect of gratuitous care were ordered to be paid to Ms Thorman, or anyone otherwise providing care to the applicant.
On 13 October 2023, the solicitors for the applicant made a claim on the respondent’s insurer disputing whether the respondent had paid the applicant past gratuitous care correctly since 7 November 2017; alleging Ms Thorman had been underpaid in the amount of $349,028.92 and sought an ongoing payment of $1,085.84 gross per week.
In a dispute notice dated 6 August 2024, the respondent denied any underpayment, asserted the applicant was ineligible for domestic assistance over and above the award granted to him in the 2017 proceedings and said in accordance with that award, Ms Thorman had been paid the sum of $222,476.28 in gratuitous domestic care payments between 4 April 2016 and
24 June 2024.The circumstances of the applicant’s injury are set out at [10] of his initial statement, where he notes that on 2 April 2009, he was checking the load on the back of his truck by climbing onto its tray. The applicant had just sat down on the tray when the truck suddenly rolled forward approximately 1m, causing him to slip and land on the roadway on his upper back.
There is no question the applicant’s condition gradually worsened, and between December 2009 and 2012, he underwent multiple surgical procedures including but not limited to an L3/4 disc replacement procedure and L5/S1 instrumental fusion.
Additionally, the applicant suffered various infections and complications from his surgery leaving him with serious ongoing pain, discomfort, restriction of movement and negative impact on his activities of daily living.
In the applicant’s most recent statement, dated 23 September 2023, he notes his back problems and pain have continued to deteriorate since the consent orders were made in the Workers Compensation Commission in September 2017. The applicant noted Ms Thorman had continued to carry out domestic assistance for him and had maintained weekly diaries of the personal care and domestic assistance she had carried out. The applicant states those diaries were submitted to the respondent’s insurer on a regular basis; however, the respondent has not increased the amount it has paid for the domestic assistance provided to the applicant.
Altogether, the applicant has had seven surgeries to his spine, including an L1/2 fusion with disc spacer and L3 to S1 fusion.
ISSUES FOR DETERMINATION
The only issue for determination is the amount of gratuitous assistance payable to the applicant by the respondent.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing before me on 15 May 2025. Mr Hickey of counsel instructed by Mr Langler appeared for the applicant. Mr Barnes of counsel instructed by Ms Walter appeared for the respondent.
At the conclusion of the hearing, directions were made for written submissions and further evidence to be lodged by the parties. That material was lodged in accordance with my directions.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (Application);
(b) Reply;
(c) respondent’s Application to Lodge Additional Documents (ALAD) dated 3 February 2025;
(d) applicant’s ALAD dated 4 February 2025;
(e) applicant’s ALAD dated 8 May 2025;
(f) respondent’s ALAD dated 8 May 2025;
(g) a list of payments as at 1 May 2025;
(h) updated list of payments effective 15 May 2025;
(i) applicant’s aide-mémoire lodged at the hearing;
(j) respondent’s aide-mémoire lodged at the hearing, and
(k) respondent’s Schedule of Quantum.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
The amount payable for domestic assistance provided to the applicant
The liability to pay compensation for domestic assistance is subject to the provisions of s 60AA of the Workers Compensation Act 1987 (the 1987 Act). That section relevantly provides:
“(1) If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if:
(a)a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and
(b)the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and
(c)the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% while the assistance is to be provided on a temporary basis as provided by subsection (2), and
(d)the assistance is provided in accordance with a care plan established by the insurer in accordance with the Workers Compensation Guidelines.
…
(2) Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or forgone employment as a result of providing the assistance.
(3) Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance was such sum as may be applicable under s 61(2) in respect of the assistance concerned.”
As with the provision of medical expenses in the workers compensation system, the test of reasonable necessity determines whether domestic assistance is payable.
It should be noted that only the question of the reasonable necessity of the domestic assistance claimed is in issue in this matter. The other requirements of s 60AA were not the subject of substantive submissions, and it was noted at the preliminary conference that the threshold requirements of the section are not in dispute. Likewise, it was noted the costs of home renovations set out in the report of the applicant’s occupational therapist (OT) are not claimed in these proceedings.
“Medical or related treatment” in the 1987 Act includes care of a worker in the worker’s home, (see s 59(f)). The definition in s 59 does not, however, cover the provision of domestic assistance on a gratuitous basis. Section 60AA of the 1987 Act commenced on 1 January 2001 and entitles the provider of gratuitous domestic assistance to payments for that care.
The word “reasonably” in s 60AA, as with the provisions of s 60, operates to qualify the effect of “necessary”, such that the injured worker does not need to prove a treatment is absolutely necessary: see Diab v NRMA Ltd [2014] NSWWCCPD 72. Likewise, the requirement that the need for domestic assistance is brought about as a result of an injury received by a worker is identical to the requirements for establishing the reasonable necessity of medical treatment in s 60.
Questions of whether a need for domestic assistance has been brought about as a result of a given injury are questions of fact and accordingly must be determined having regard to a commonsense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
In this matter, each party has provided source material outlining services provided to the applicant in the nature of gratuitous domestic assistance together with expert OT evidence.
The parties have agreed on the applicable hourly rate which is payable pursuant to s 60AA, as indexed from time to time. The points of contention between the parties are the reasonable necessity of the hours claimed by the applicant together with an attack on his and Ms Thorman’s credit.
Ms Collins, the applicant’s OT has assessed his reasonable needs for gratuitous domestic assistance at between 30 and 32 hours per week for the relevant period claimed. The respondent’s OT, Ms Walter, by contrast assesses the applicant is requiring 15.8 hours of domestic assistance per week.
An important point of difference between the two OTs retained by the parties was in relation to the question of whether the applicant’s condition had significantly deteriorated between the making of the prior consent orders in 2017 and the respective assessments in August 2024 and March 2025. Ms Collins for the applicant was of the view it had, while Ms Worton believed it had not.
In addition to the specific categories of assistance claimed which are dealt with later in these reasons, I make the general observation that Ms Collins has the benefit of having examined the applicant in February 2017 and August 2024, whilst Ms Worton has only examined him once, in March 2025. This is not to say Ms Worton’s view is therefore inaccurate or not worthy of significant weight, especially as she had access to the reports of previous OTs
Ms Cunningham and Mr Toovey. However, in circumstances where the question of any deterioration is in issue, there is some strength in an expert being able to compare their own observations across some seven years.Each of the OTs has set out useful and detailed reports regarding their observations and findings. In determining the level of reasonably necessary assistance, it is necessary to first examine the findings on functional examination over time to assess whether the applicant has suffered any serious decline since the making of the consent orders in late 2017. The OTs each make comments on their findings in relation to the applicant’s condition under specific headings in their reports. It is appropriate to deal with those functional categories in turn.
Mobility
In February 2017, Ms Collins found the applicant could walk for 15 minutes on a treadmill but had difficulty on uneven ground. By August 2024, the applicant’s ability to walk had reduced to between 10-15 minutes and he had recorded 10 falls in that year. In March 2025,
Ms Worton noted the applicant’s movements to be “slow and stiff, and he tended to hold furniture and fixtures throughout” mobilising. The applicant recalled having five falls in the preceding six months.On balance, I accept the applicant had suffered a worsening of his mobility over the period between 2017 and present. The observations of both OTs support a finding that he is capable of walking reduced distances and does so in a less steady fashion than in 2017.
Showering, dressing and grooming
In 2017, Ms Collins assessed the applicant as requiring 1 hour of assistance with this category. She assessed the same level of assistance in 2024. Ms Worton assessed 5.83 hours per week assistance, or approximately 50 minutes per day.
Both OTs noted the applicant found the aids provided to him largely ineffective owing to pain, however, his own expert indicated the level of care provided under this category had remained the same since 2017.
Toileting
Each of the OTs noted the applicant now suffers periodic bouts of incontinence compared with 2017 when he was observed by Ms Collins to be independent with toileting despite difficulty with hygiene. Mr Toovey, OT provided two reports for the respondent in 2023 and early 2024 in which he noted the applicant’s toileting ability had decreased from independence with grab rails to requiring partner assistance.
I note the table of past gratuitous care in the Executive Summary of Ms Collins’ 2024 report contains a typographical error in that it lists toileting and hygiene assistance as required at 15 minutes per week. A simple addition of each of the categories in that table demonstrates that figure should be 15 minutes per day.
The decline in the applicant’s capacity for self-toileting is, in my view, readily apparent by reference to the various OT reports since 2017. I have no difficulty in accepting he now requires greater assistance than he did at the time of the making of the consent order in late 2017.
Domestic tasks
In 2017, Ms Collins assessed the applicant as being capable of minimal meal preparation, no cleaning and some laundry. By the time of Mr Toovey’s first assessment in 2023, he was assessed as attending to minor tasks such as wiping benches and loading the washing machine, with Ms Thorman attending to most duties.
By the time of Mr Toovey’s second assessment in March 2024, the applicant was assessed as having no capacity for any tasks, with Ms Thorman attending to all of them. That finding was consistent with Ms Collins’ in August 2024 and Ms Worton in early 2025.
Ms Worton, however, was of the view the deterioration in the applicant’s condition was insignificant, as the applicant was attending to few tasks in 2017. Rather, Ms Worton was of the opinion:
“…Mr Plater has become increasingly dependent on Maryanne Thorman since 2017 and has ceased to complete tasks, such as very basic meal preparation and very short distance driving tasks, which has resulted in his reduced tolerance for activity and subsequent deconditioning causing an increase in support hours provided by Maryanne.”
In my view, however, the balance of the material does demonstrate significant decline in the applicant’s capacity to carry out domestic tasks. Ms Worton, appropriately in my view, concedes the applicant has becomes deconditioned as a result of his increased reliance on Ms Thorman, leading to an increase in the hours provided by her. However, in assessing the amount of time for provision of care which is reasonably necessary, Ms Worton stated the hours required under this category have not changed since the consent orders in 2017.
However, if the applicant has become deconditioned leading to increased reliance on
Ms Thorman, one might ask “Is that not a consequence of his injury?” This inquiry is a question of causation, requiring a commonsense evaluation of the causal chain. Such evaluation plainly leads back to the applicant’s injury, and there is nothing which is seriously suggested as having broken the chain of causation between the injury and the applicant’s current status. As such, I accept there has been a serious deterioration in the applicant’s capacity to carry out domestic tasks since 2017, leading to a materially greater reliance on Ms Thorman.
Driving
In 2017, the applicant was assessed by Ms Collins as being capable of driving between 20-60 minutes, with increasing pain. By March 2024 and Mr Toovey’s first assessment, that amount had reduced to 15 minutes at a time, a figure confirmed by Ms Collins. By early 2025 when Ms Worton assessed the applicant, his driving tolerance had reduced to 5 minutes.
As such, I have no difficulty finding there had been a marked deterioration in the applicant’s capacity to drive.
Physical tolerances
In 2017, Ms Collins found the applicant could stand for 15 minutes, sit reclined for 60 minutes and lift up to 10kg. By the time of her assessment in August 2024, the applicant’s standing tolerance had reduced to 5 minutes, could still sit reclined for 60 minutes and had a lifting capacity of up to 6kg. In February 2025, Ms Worton assessed the applicant’s lifting capacity as 5kg.
Taking into account the lay, medical and OT material in relation to each of the above categories, I find the evidence comfortably discloses the applicant has suffered a significant decline in his physical tolerances since the making of the consent orders in 2017. This finding is consistent with his general physical decline and the effect of further treatment since the earlier agreement.
Although Ms Worton has assessed a figure for reasonable care which is greater than that contained in the 2017 consent orders, she makes clear in her report that such figure is not the product of a worsening of the applicant’s condition. Ms Worton states:
“I consider that the hours recommended in section 8.0 [of her report] would have been required from the date of agreement on 7 November 2017. The hours supported have not taken into consideration any agreement for gratuitous care and are calculated as total support required.”
I am unable to accept that conclusion. The applicant has undergone no fewer than six assessments by OTs between February 2017 and March 2025, conducted by four therapists, three of whom were retained by the respondent. An examination of each of their findings reveals a clear and substantial decline over seven years in the applicant’s ability to care for himself and to attend to activities of daily living, including but not limited to domestic tasks.
Having found the applicant’s condition has deteriorated since the making of the consent orders in 2017, the question for determination is to what extent, if any, does that deterioration manifest in reasonably necessary care? Before addressing the specifically assessed categories of assistance, it is, however, appropriate to deal with the issue of the applicant and Ms Thorman’s credit.
Credit findings
For the respondent, Mr Barnes noted that certain diary entries provided by Ms Thorman were plainly inaccurate, as they claimed domestic assistance for times when the applicant was, on the basis of the medical material, in hospital.
Mr Barnes submitted the question for the Commission was whether the applicant’s claims for gratuitous assistance were believable and, if so, reasonably necessary.
Mr Barnes noted the applicant’s fifth statement of evidence at page 23 of the Application, where the applicant notes Ms Thorman had continued to maintain weekly diaries of personal care and domestic assistance performed on her behalf, which he had checked and signed each week. However, as Mr Barnes noted, in his fourth statement at page 17 of the Application, the applicant indicates he is illiterate. Mr Barnes therefore questioned how the applicant could accurately check and sign the diaries maintained by Ms Thorman to determine that they were correct. The respondent submitted the amount of personal care claimed was exaggerated.
Mr Barnes submitted such unreliability is important, as the applicant’s OT heavily relied on Ms Thorman’s diaries in formulating the quantum of the applicant’s claim. Mr Barnes also noted the respondent has acknowledged the applicant requires additional gratuitous care above and beyond that which was the subject of the consent orders in 2017, however, he submitted that in circumstances where the applicant carried the onus of proof and the source material upon which his OT based her report is unreliable, the Commission would prefer the views of the respondent’s OT.
Mr Hickey submitted if the respondent sought to attack the applicant and Ms Thorman’s credit on matters so serious as an alleged overstating of services provided, then application ought to have been made to cross-examine the witnesses and put the discrepancies to them. Mr Hickey submitted the respondent had not put forward evidence as to when the applicant was in hospital, for how long or the level of care provided in hospital to him. He relied on the decision in Finney Pty Ltd t/as Cutprice Car Rentals v Chequer [2021] NSWPICPD 13 (Finney), regarding credit findings being made against witnesses without them being cross examined and the requirements of procedural fairness in that context. Mr Hickey asserted it was incumbent upon the respondent to put these matters to the witnesses if their credit was to be attacked in circumstances where it is suggested their evidence is deliberately false.
With regard to the diary entries of Ms Thorman to which I was taken, I accept the presence of some mistakes in her recording of the care provided from time to time. However, it does not follow the entirety of Ms Thorman’s diaries are therefore unreliable. Whilst both Ms Walter, the respondent’s OT and Mr Barnes noted these discrepancies, there are nearly eight years of diary entries provided by Ms Thorman, and in my view, the fact that certain limited entries are plainly inaccurate does not render the entirety of those diaries unreliable, nor is it evidence of an attempt on the part of the applicant and/or Ms Thorman to obtain benefits above and beyond those to which they may reasonably entitled. Record keeping in the context of caring for a loved one with significant disability is an onerous task, and I accept on balance Ms Thorman has done her best to record the services provided by her to the applicant, notwithstanding some obvious errors on her part.
I accept Mr Hickey’s submission that the respondent’s attack on the credit of the applicant and Ms Thorman was essentially a broad one and was not sufficiently specific and widespread to warrant Ms Thorman’s diaries being discounted in their entirety. Mr Hickey submitted the applicant’s detailed evidence provided by Ms Thorman, the applicant himself and the OT was sufficient to satisfy the applicant’s claim in its entirety.
Categories of assistance
Given my finding that the applicant’s condition has deteriorated, and the fact Ms Worton’s assessment of 15.8 hours of reasonably necessary domestic assistance is said to have applied from 2017 to date, I am of the view her calculation has not taken into account the deterioration which I have found he has suffered over the relevant seven-year period since the consent orders were made.
This does not, however, mean Ms Collins’ report must be accepted in its entirety, or that
Ms Worton’s individual findings on assessment are to be disregarded.Rather, it is necessary to examine the categories of care provided to determine the amount which is reasonably necessary. Such a task will involve an assessment of whether the deterioration in the applicant’s condition has led to an increased requirement for care. For the purposes of this exercise, it is convenient to use the categories set out in the executive summary of Ms Collins’ most recent report, which are set out on p 101 of the Application. Dealing with each in turn, I make the following findings.
Emotional support
Part of the applicant’s claim is for 1.75 hours per week for emotional support provided by Ms Thorman to the applicant. That allowance was contested by the respondent, and in doing so the respondent relied on the decision of the Supreme Court in Wormleaton v Thomas & Coffey Ltd (No 4) [2015] NSWSC 260, where the Court noted at [134]:
“People are social beings, and most of us appreciate the company of family, friends and colleagues. But the benefits we derive from that society is not a service provided by those others to us. Nor can we, as I have said, provide that support to ourselves.”
On balance, I find the claim for emotional support at the rate of 15 minutes per day, or 1.75 hours per week is not claimable gratuitous assistance.
Bathing/ grooming/ dressing
Doing the best I can, I find the applicant requires 6.25 hours of assistance per week for this category. I make this finding taking into account the familiarity of the applicant and
Ms Thorman with the procedures which they adopt in attending to the applicant’s needs. It is apparent that although his condition has deteriorated since 2017, the applicant already required a large degree of assistance when the consent orders were entered into, a proposition with which Ms Collins plainly agrees, as she has not increased the level of care under this category which she believes is reasonably necessary.
Transfer and mobility
I accept the applicant has difficulties transferring to and from bed, chairs and a motor vehicle, and that his needs have increased since 2017. Ms Worton assessed his ongoing needs at 1.75 hours per week, however, in my view that assessment does not adequately account for the deterioration in the applicant’s condition. By the same token, Ms Collins’ 2017 assessment provided for 1 hour of transfers per week, and her most recent report states 3.5 hours per week are necessary.
It is not clear from Ms Collins’ 2024 report as to why the applicant’s deterioration from a condition which already required extensive assistance with transfers has worsened to the point where the time taken for this component has doubled. On balance, doing my best in assessing the evidence at hand, I find an appropriate award for the past and future for this category is 2.5 hours per week.
Massage, TENS machine and application of Voltaren
Both OTs agree the applicant requires assistance with both applying Voltaren cream and the use of a TENS machine. Ms Collins recorded that Ms Thorman carries out massage for 20 minutes per day and also applies the TENS machine as needed. Ms Thorman indicated to Ms Worton that she applies the TENS machine then returns to remove it.
Ms Worton assessed 20 minutes per day for these tasks, or 2.3 hours per week. That figure does not, however, allow for the time taken to fit, operate and remove the TENS machine.
Ms Collins assessed 30 minutes per day, or 5.8 hours per week, however, that figure appears to include time for Ms Thorman to remain with the applicant while he uses the TENS machine, which Ms Thorman indicated was unnecessary.
On balance, I believe the appropriate level of assistance for this category is 25 minutes per day, or 2.9 hours per week. This figure includes time for each of massage, Voltaren and the TENS machine, however, I have not included an allowance for Ms Thorman to remain with the applicant while he uses the TENS machine.
Toileting and hygiene
There is no issue the applicant requires some assistance with toileting and hygiene, and that his condition has worsened given he now suffers from occasional incontinence. Ms Collins assessed this component at 1.75 hours per week compared with Ms Warton at 15 minutes per week for the past and nil for the future, instead favouring the purchase of 1-2 incontinence pads per night and the installation of a bidet.
The difficulty with Mr Worton’s position is that even allowing for the purchase of the bidet and incontinence pads, the applicant will clearly require assistance in toileting in removing and fitting the incontinence pads and from time to time in accessing the bidet, especially at night.
On balance, I consider an allowance for past and future toileting as appropriate at the rate of 1.1 hours per week.
Cleaning
The applicant is clearly now unable to attend to even basic cleaning tasks, a downgrade on his capabilities from 2017. Ms Worton found an allowance for the applicant’s component of the household cleaning for both past and future of 2 hours per week. Ms Collins assessed a requirement for 3 hours per week.
Accepting as I do the deterioration in the applicant’s condition and that he used to provide at least some cursory assistance to Ms Thorman before his situation worsened, I find
Ms Collins’ assessment to be reasonable, and an award at the rate of 3 hours per week for past and future will be made.
Kitchen-based tasks
Each of the OTs support a past and future allowance of 2.5 hours per week for kitchen tasks and cooking, and an award in that amount will be made accordingly.
Laundry tasks
Regarding laundry, Ms Collins assesses a past and future allowance of 1.5 hours per week. Ms Worton assesses a past allowance of 0.5 hours per week, and nothing for the future, on the basis of purchasing incontinence pads.
The applicant allegedly indicated to Ms Worton that he had not attended to laundry tasks before his injury, however, the claim for laundry services is said to be for additional work carried out by Ms Thorman because of the applicant’s incontinence issues, rather than in substitution for work previously caried out by the applicant.
Noting the applicant requires additional changes of bedding which involve washing, drying and the physical changing of the sheets up to three times per week because of his incontinence, I am of the view an ongoing allowance is appropriate. However, I find
Ms Collins’ assessment excessive in the circumstances and allow 1 hour per week for the past and future.
Shopping
Ms Worton has assessed the additional time taken by Ms Thorman for shopping at 15 minutes per week. Given the applicant no longer accesses the shops and that he and
Ms Thorman used to attend to shopping together, I find Ms Worton’s assessment inadequate. Ms Collins allowed an additional 1 hour for shopping, noting the total time spent on this activity by Ms Thorman was 2 hours. On balance, I do not believe it is appropriate to allocate half of the total time spent shopping as additional to that which would otherwise have been carried out, as in my view there will always be joint items purchased when people shop together, rather than a strict 50:50 delineation between time spent shopping for one partner and the other. Doing the best I can, I find a past and future allowance for this component of 45 minutes per week is appropriate.
Property maintenance
Each of the OTs assess the combined property and yard components at approximately 1 hour per week, and on balance I find that allowance appropriate.
Community access/ transportation assistance
The OTs agree the applicant requires community access and transportation assistance.
Ms Collins assessed this requirement at 2.5 hours per week, noting the applicant often had to travel to Kempsey for medical and other appointments, which is 25 minutes away.For her part, Ms Worton broadly agreed with the requirement for such assistance, however, did not quantify it and instead recommended an OT driving assessment.
Given only Ms Collins has quantified this component, and Ms Worton has not indicated it was inappropriate to do so despite preferring the applicant undergo an assessment, I accept
Ms Collins’ view and will allow the claimed 2.5 hours per week for this category of the claim.
Car care
Although the category of “car care” in the report of Ms Collins is broadly one for which a claim for gratuitous assistance can be made, the evidence discloses this assistance is not provided by Ms Thorman, but rather by friends of the applicant. This being so, it is not compensable to Ms Thorman, who has not provided the relevant assistance.
It is unclear on the evidence who provides this assistance to the applicant, and Ms Collins provides scant details as to the nature of the care provided. This being so, and noting the applicant carries the onus of proof, I find he has not discharged that onus in relation to this component of his claim and no allowance will be made for it.
Summary of findings
Having regard to the lay and expert evidence, I therefore find the following gratuitous assistance to be reasonably necessary:
· Emotional support – not compensable
· Bathing/ grooming/ dressing – 6.25 hours/ week
· Toileting/ hygiene – 1.1 hour/ week
· Mobility and transfers – 2.5 hours/ week
· Massage and TENS Machine – 2.9 hours/ week
· Cleaning – 3 hours/ week
· Kitchen based tasks – 2.5 hours/ week
· Laundry – 1 hour/ week
· Shopping – 0.75 hours per week
· Community access/ transport – 2.5 hours/ week
· Car care – not compensable.
Total – 22.5 hours per week.
Having regard to the totality of the evidence, both lay and expert, in my view the applicant has, from 7 November 2017 to date and continuing therefore required domestic assistance provided by Ms Thorman at an average across the above period of 22.5 hours per week.
Given the respondent has been paying for such domestic assistance at the rate of 10.5 hours per week, I am therefore of the view the respondent should pay for an additional 12 hours per week for the period claimed and continuing.
Given the hourly rates of domestic assistance are accepted as those set out in the respondent’s aide-mémoire dated 15 May 2025, as are the periods into which the claimed assistance is divided, I find the total amounts payable are as follows, noting the respondent has been paying for gratuitous assistance at the rate of 10.5 hours per week:
PERIOD
HOURS
/WEEK
AGREED S60AA HOURLY RATE
NUMBER OF WEEKS IN PERIOD
SUB TOTAL
(1) X (2) X (3)
7/11/2017 – 30/11/2017
22.5
$46.95
3
$3,169.12
1/12/2017 – 31/05/2018
22.5
$47.65
26
$27,875.25
1/06/2018 – 30/11/2018
22.5
$48.17
26
$28,179.45
1/12/2018 – 31/05/2019
22.5
$47.55
26
$27,816.75
1/06/2019 – 30/11/2019
22.5
$48.00
26
$28,080.00
1/12/2019 – 31/05/2020
22.5
$49.97
26
$29,232.45
1/06/2020 – 30/11/2020
22.5
$50.05
26
$29,279.25
1/12/2020 – 31/05/2021
22.5
$50.41
26
$29,489.85
1/06/2021 – 30/11/2021
22.5
$50.32
26
$29,437.20
1/12/2021 – 31/05/2022
22.5
$51.14
26
$29,916.90
1/06/2022 – 30/11/2022
22.5
$51.72
26
$30,256.20
1/12/2022 – 31/05/2023
22.5
$52.34
26
$30,618.90
1/06/2023 – 30/11/2023
22.5
$54.04
26
$31,613.40
1/12/2023 – 31/05/2024
22.5
$54.04
26
$31,613.40
1/06/2024 – 16/08/2024
22.5
$56.73
11
$14,040.67
17/08/2024 – 30/11/2024
22.5
$56.73
15
$19,146.37
1/12/2024 – 15/05/2025
22.5
$56.73
23
$29,357.77
Sub -total
$449,122.93
Less total gratuitous assistance paid by GIO as per the list of payments dated 15 May 2025
-$255,289.72
Amount payable to the applicant
$193,833.21
Accordingly, the respondent will be ordered to pay for past gratuitous assistance in the amount of $449,122.93 and is to have credit for payments already made in the sum of $255,289.72.
Additionally, the respondent will be ordered to pay for ongoing domestic assistance to
Ms Thorman from the date of this decision at the rate of 22.5 hours per week.
SUMMARY
For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.
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