Scarmozzino and Telstra Corporation Limited (Compensation)
[2024] AATA 388
•8 March 2024
Scarmozzino and Telstra Corporation Limited (Compensation) [2024] AATA 388 (8 March 2024)
Division: GENERAL DIVISION
File Number: 2022/9739
Re:Gabriel Scarmozzino
APPLICANT
Telstra Corporation LimitedAnd
RESPONDENT
DECISION
Tribunal:Member R West
Date:8 March 2024
Place:Melbourne
The decision under review is affirmed.
.............................[sgd]...........................................
Member R West
Catchwords
WORKERS COMPENSATION -- Safety, Rehabilitation and Compensation Act 1988 – lower back strain – chronic adjustment disorder with anxiety and depression – microdiscectomy surgery – refusal of compensation for household services pursuant to section 29 – gardening services – whether the household services sought by the Applicant reasonably required – decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Carr v Australian Postal Corporation [2005] AATA 817
Chowdhary v Comcare [1998] AATA 448
REASONS FOR DECISION
Member R West
8 March 2024
This matter concerns an application for the review of a decision of the Respondent dated 13 October 2022 affirming a determination of 8 August 2022 to decline to pay compensation for household services pursuant to section 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).[1]
[1] T1; T38.
BACKGROUND
At all material times the Applicant was employed by the Respondent and is currently employed by the Respondent as a Network Designer.
The Respondent has accepted liability for workers’ compensation under the SRC Act in respect of the Applicant’s conditions of ‘lumbar strain and sciatica’ sustained on 9 March 1995 and ‘lower back strain’ sustained on 2 May 1996 when he was working as a linesman. The Applicant received compensation from the Respondent in respect of incapacity for work, medical treatment and household services.[2]
[2] ASFIC, [8]-[9]; RSFIC, [3]-[4].
A consent decision of the Tribunal dated 1 June 2010 awarded the Applicant:[3]
a.compensation for 10% whole person impairment for ‘chronic adjustment disorder with anxiety and depression’ and compensation for medical treatment under section 16 of the SRC Act for that condition; and
b.compensation in respect of 13% whole person impairment for the Applicant’s lower back condition.
[3] T5.
On 12 November 2010 the Applicant underwent microdiscectomy surgery on his lumbar spine for which the Respondent accepted liability, and he returned to work on full-time hours in 2011.[4]
[4] RSFIC, [5].
Prior to 2022 the Respondent had accepted the Applicant’s claims for household services in respect of gardening including lawnmowing on 29 August 2014,[5] 15 April 2015,[6] 15 October 2015,[7] 25 February 2016,[8] 25 May 2016,[9] 5 August 2016,[10] 16 December 2016,[11] 9 March 2017,[12] 22 June 2017,[13] 15 August 2017,[14] 1 March 2018,[15] 26 March 2018,[16] 9 July 2018,[17] and on 27 May 2022.[18]
[5] T12.
[6] T13.
[7] T18.
[8] T21.
[9] T22.
[10] T23.
[11] T25.
[12] T26.
[13] T27.
[14] T28.
[15] T30.
[16] T32.
[17] T33.
[18] T34.
On 31 January 2022 the Applicant submitted a further claim for household services requesting gardening and lawnmowing services as a result of “low back strain and chronic adjustment disorder with anxiety and depression” sustained on 2 May 1996 (the Claim).[19]
[19] T3.
On 8 August 2022 the Respondent declined the Claim (the Initial Determination).[20]
[20] T36.
On 20 September 2022, the Applicant requested reconsideration of the Initial Determination.[21]
[21] T37.
On 13 October 2022 the Respondent affirmed the Initial Determination (the Reviewable Decision).[22]
[22] T38.
On 23 November 2022, the Applicant filed an application with the Tribunal for review of the Reviewable Decision (the Application).[23]
[23] T1.
HEARING
A hearing in relation to the Application was held on 19 and 20 February 2024. The Applicant was represented by Ms Cassie Serpell of counsel. The Respondent was represented by Ms Felicity Blair of counsel.
In conducting the review, the Tribunal has had regard to:
(a)the documents produced by the Respondent pursuant to ss 37 and 38AA of the AAT Act in relation to the matter (T Documents)[24];
(b)documents tendered by the Applicant and listed in Appendix A;
(c)documents tendered by the Respondent and listed in Appendix A; and
(d)the oral evidence of:
(i)the Applicant;
(ii)Beatrice Scarmozzino;
(iii)Peter Scarmozzino;
(iv)Angelina Scarmozzino; and
(v)Dr Philip Boltin, general practitioner.
[24] These documents comprise two bundles, the T-Documents sequentially numbered from T1 to T41 at pages 1 to 155 and Supplementary Documents sequentially numbered from ST1 to ST22 and separately paginated at pages 1 to 89.
LEGISLATIVE PROVISIONS
Section 29 of the SRC Act relevantly provides:
(1) Subject to subsection (5), where, as a result of an injury (other than a catastrophic 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).
EVIDENCE
Applicant
The Applicant provided a witness statement dated 29 November 2023 and gave oral evidence at the hearing.
In his written statement the Applicant stated that:[25]
[25] Exhibit A1.
a.He lives with his wife Beatrice (then aged 52), his son Peter (then aged 21) and his daughters Angelina (then aged 18) and Jacinta (then aged 14).
b.Following his injuries in 1995 and 1996, for which the Respondent accepted liability, he experienced ongoing pain in his right leg and lower back. He had microdiscectomy surgery in November 2010, which improved his condition and he undertook a gradual return to work in 2011 on restricted days until resuming full-time. He predominantly works from home now using a sit/stand workstation and attends the office or goes on site visits only when necessary. He said he still experiences lower back pain and since around 2016 constant pain in his left buttock. He takes anti-inflammatory medication and pain killers as necessary.
c.In April 1991 he purchased a property in Northcote (the Northcote property), which he rented out for several years before moving in to live there himself. He sold the Northcote property in March 1995 and lived there until settlement of the sale. He then lived with his parents until he was married, and he and his wife moved into their current home in Thornbury in January 2001.
d.He was living at the Northcote property when injured in March 1995. He said he had incorrectly advised various occupational therapists who had assessed him that he was living with his parents prior to his injury in 1995 but having now considered the question more closely he had discovered that he was actually living at the Northcote property.
e.The Northcote property had ‘a grass nature strip, a front yard, a strip of grass down the middle of the driveway and grass at the back of the property’. It also had a number of established trees, some rose bushes, a weeping cherry tree and hedges along the path from the gate to the front door. The backyard had a lemon tree and a vegetable garden. He maintained the garden at the Northcote property, mowing the grass, pruning roses, maintaining the vegetable garden, feeding, weeding and edging the lawn and watering the garden manually.
f.While living at his parents’ house he also maintained and cared for their garden.
g.His current property in Thornbury has a wide nature strip with a tree. The front yard has grass on both sides of a concrete path with box hedges on each side of the path. It has ten rose bushes, a weeping cherry tree, a native shrub and a Yucca tree. Along the driveway there are three evergreen lilly pillies, a fern and a bird of paradise plant. A sprinkler system in the front yard is broken and does not work. The backyard has a garden bed that is attended to by his wife, a grass path around eight metres by 3 metres, four linear metres of box hedge, a lemon tree and a peach tree.
h.The garden requires lawnmowing, weeding, pruning, hedging and edging. The weeping cherry, lemon and peach trees require the use of a ladder for proper access for pruning.
i.He has attempted to do the lawnmowing ‘on various occasions over the years’ but each time he suffers ‘increased pain from the twisting and turning’ for several days. At such times he needs ‘to rest flat on his back whenever possible and take additional pain killing medication’, which results in reflux issues. He has also attempted pruning and manual hedging but it ‘becomes too much’ for his back to cope with. There are no gardening tasks he can do that do not cause any exacerbation of his pain.
j.As far as other domestic tasks are concerned, he cannot do much shopping because of the 10kg lifting restriction he is under, he can do a little cleaning such as wiping the table and washing dishes, he can sweep the floor and do vacuuming but at a slow pace. He is unable to do any other housework which involves twisting and bending. His wife Beatrice does most of the housework. She is ‘struggling physically with everything she does’, which includes part-time work. She does not have spare time for gardening nor the experience nor the inclination to do outdoor work.
k.His son Peter and daughter Angelina are both studying and have no spare time and no gardening experience. Peter is under ‘extreme pressure’ with his studies and sporting commitments. Angelina has undertaken Year 12 and has a job at McDonalds. Jacinta is still at school and has no interest or experience in gardening.
Beatrice Scarmozzino
Mrs Scarmozzino provided a witness statement dated 20 July 2023 and gave oral evidence at the hearing.
In her written statement, which she updated in her oral evidence, she stated:[26]
a.She is the wife of the Applicant.
b.She is employed part-time as a canteen assistant working 10.30am to 2.00pm on Tuesdays, 10.00am to 1.45pm on Wednesdays and Thursdays and occasionally from 9.00am and sometimes on a Monday or Friday. On other days she cares for her mother in assisting with tasks around the house. She also assists her mother-in-law with cooking and cleaning and until recently used to look after her sister’s two young children one day each week.
c.At home she does the grocery shopping, cleaning, washing and driving her children to various activities, although Angelina now has her driver’s licence and drives herself.
d.She is unable to complete gardening work as she is not confident in maintaining an established garden and she does not have the time or the strength to do so.
[26] Exhibit A4.
Peter Scarmozzino
Mr Scarmozzino provided a witness statement dated 11 August 2023 and gave oral evidence at the hearing.
In his written statement he stated:[27]
a.He is the son of the Applicant and was born in November 2002. He resides with his parents in the Thornbury house.
b.At the time of the statement, he was a student at RMIT University studying an Advanced Diploma of Building and Design and after completing it he intended to enrol in a Bachelor of Architectural Design. His university hours were Monday 2.30pm to 4.30pm and 5.30pm to 7.30 pm, Wednesday 9.00am to 5.30pm and Thursday 9.00am to 4.30pm and 6.30pm to 8.30pm. The course required a 100% pass rate. He spent most of his spare time, particularly during university breaks studying and being supervised by a mentor. He also worked in the industry during university breaks.
c.During the university semesters he worked part-time as a tennis coach three evenings per week with additional hours during university breaks. He played in a men’s tennis competition on Thursday evenings and trained with his team on Monday evenings. During the soccer season he played with a team on Saturday or Sunday and trained on Tuesday and Thursday evenings. He has recently found his workload overwhelming and found it difficult to manage his mental health.
d.As a result of his busy schedule he did not have time to assist with gardening or maintenance around the house, but he assisted with simple tasks including taking out the rubbish, cleaning his room and washing some clothes. He is not qualified to use gardening tools.
[27] Exhibit A5.
In his oral evidence he said that he has completed his Advanced Diploma and is enrolled in a Bachelor of Architectural Design in 2024 which will require attendance at university from 11.30am to 2.30pm on Tuesdays and Thursdays and from 2.30pm to 5.30pm on Fridays during semester. He said he is still discussing his hours of work as a part-time tennis coach, but his job has been confirmed and will involve 6-7 hours per week. He said he no longer plays soccer and will concentrate on tennis with the ambition to play on the ITF tour.
Angelina Scarmozzino
Ms Scarmozzino provided a witness statement dated 20 July 2023 and gave oral evidence at the hearing.
In her written statement she stated:[28]
a.She is the daughter of the Applicant and was born in September 2005. She lives in her parents’ home in Thornbury.
b.At the time of her statement she was studying at Year 12 level and was Learning Captain at her school with leadership responsibilities. She had a part-time job at McDonalds working approximately four to six hours per weekend and on school holidays she had a part-time job working for a shopping centre manager. She played basketball and was taking driving lessons.
c.She assisted at home by cleaning her room and helping with the dishes but she did not have time to assist with gardening and had no knowledge or experience in the use of gardening tools.
[28] Exhibit A6.
In her oral evidence she stated that she has now enrolled in a Bachelor of Engineering for 2024, which will involve attendance at university from 10.30am to 6.30pm on Tuesdays and Wednesdays and from 2.30pm to 3.30pm on Fridays during term time. She also works casual shifts at a McDonald’s restaurant approximately 15-20 hours per week. She said she has ceased basketball and now has her driver’s licence.
Medical Evidence
Dr Philip Boltin
Dr Boltin, general practitioner, provided a report at the request of the Applicant dated 2 March 2023 and gave oral evidence at the hearing.
In his report Dr Boltin stated: [29]
a.The Applicant had been a patient at his medical practice for over 30 years. He confirmed that the Applicant had ‘sustained a work-related discogenic low back injury in the mid-1990’s and underwent a back operation some 15 years after first experiencing severe low back pain’. He noted that the Applicant returned to work and ‘made steady progress which stabilised after some months’, and he has continued under a certificate ‘to avoid heavy lifting, bending and stretching and to be permitted rest breaks if required’.
b.The prognosis for the Applicant, ‘after years of a stable low back condition which is managed with analgesia and the avoidance of aggravation, is that it will continue as such for the foreseeable future’. He is not fit for heavy household or gardening duties. There is ‘a genuine risk that if he attempts then (sic), or they are imposed on him, they will impact his back pain and mobility and potentially reduce his capacity for work’.
c.He concluded, ‘I fully endorse his request for help with heavy home duties and gardening, and believe that it is entirely reasonable that Telstra continues to fund this as has been the case until the recent past.’
[29] Exhibit A7.
Mr Ash Chehata
Mr Chehata, orthopaedic surgeon, provided a written report at the request of the Applicant dated 14 September 2023, in which he stated:[30]
a.The diagnosis is that of ongoing chronic back pain post discectomy at the level of L5/S1.
b.There is no doubt that the condition is certainly permanent and stable.
c.‘Using the Comcare Guides from 2023, he equates to a herniated disc with a discectomy and the percentage impairment is between 10 and 13% and due to the chronicity and the severity of his ongoing symptoms, I have taken the upper level percentage and would accept again the previous findings of 13% Whole Person Impairment.’[31]
d.‘It would certainly appear that he has attempted to return back to the gardening duties, which he has been unable to perform. I would believe that considering the restrictions at work that the idea of a gardener for two and a half hours per month is potentially very reasonable and is not excessive. I would assume that in a usual fashion, most people would find performing gardening quite therapeutic and it is seeming more due to his ongoing lower back symptoms and restriction that is preventing him from performing the gardening.’[32]
[30] Exhibit A3.
[31] Ibid, 7.
[32] Ibid, 6.
Dr Joseph Slesenger
Dr Slesenger, consultant occupational physician, provided a report at the request of the Respondent dated 14 March 2023, in which he stated:[33]
[33] Exhibit R1.
a. He took a detailed history and had regard to various medical reports, concluding that the Applicant is suffering with chronic lower back pain subsequent to a soft tissue injury, aggravating degenerative disease of the lumbar spine, for which he has undergone an L5/S1 microdiscectomy. He also noted a psychological impairment which was outside his expertise.[34]
[34] Ibid, 10-13.
b. He opined that the Applicant has reached a position of maximum medical improvement and he should continue to engage in a self-managed exercise program and also take medication as required. He will require regular review under the care of his GP.[35]
[35] Ibid, 17.
c. He opined that the Applicant retains capacity for light activities and could continue to engage in duties with the following restrictions:[36]
[36] Ibid, 18.
i.not push, pull, carry or lift anything over 5kg.;
ii.avoid repetitive bending or twisting;
iii.avoid prolonged static postures; and
iv.avoid exposure to whole body vibration.
He also encouraged the Applicant to engage in an exercise program in order to maintain his level of function and said he anticipated that the Applicant could perform light gardening tasks within the capacity limits outlined above.
d. He acknowledged that the there are some tasks outlined within the gardening tasks that lie outside the Applicant’s capacity limits, particularly those involved with hedge trimming, pruning and mulching, but he opined that the Applicant could rely on family members to perform such tasks. He noted that the main reported barrier to their non-engagement in gardening duties was time limitations.[37]
e. He also noted that the Applicant was not engaging in domestic duties which are being performed by his family. In his opinion the Applicant ‘could engage in light shopping, cleaning, laundry and vacuuming as part of his physical maintenance program’. With this in place, ‘other family members could be released from some of the lighter domestic tasks in order to perform some of the heavier gardening duties’. He expressed optimism that the Applicant could engage in domestic tasks to the point that the family members could have sufficient time to perform the limited remaining gardening duties.[38]
f. He further recommended that the Applicant be provided with light weight equipment in order to complete the gardening tasks and that he receive a period of training in order to use the equipment. He also opined that other family members may also benefit from a period of training or induction in order to maintain the garden.[39]
[37] Ibid, 18.
[38] Ibid, 19.
[39] Ibid, 19.
CONSIDERATION
The Reviewable Decision concerns an application by the Applicant for compensation under s 29 of the SRC Act for the provision of household services, namely garden services including lawn mowing, hedging, pruning and weeding for 2-3 hours per fortnight.[40]
[40] T3, 8-11.
Under s 29(1) the Tribunal is required to consider two principal issues in re-assessing the application:
a.whether the household services sought by the Applicant are reasonably required; and
b.if they are reasonably required, what amount of compensation is reasonable in the circumstances being not less than 50% of the amount payable by the Applicant for those services each week and no more than $200.
Are the household services sought by the Applicant reasonably required?
Subsection 29(2) sets out matters that the Tribunal must consider in determining this question. Those matters are not exclusive and do not limit the matters the Tribunal can take into account. Of particular importance in any assessment under s 29 is the extent to which the Applicant’s accepted injury impinges on the Applicant’s ability to carry out the tasks for which household services are sought. This requires an assessment of the nature and extent of the tasks and the level of incapacity suffered by the Applicant as a result of the accepted injury.
The nature and extent of the gardening tasks
The Applicant gave detailed evidence regarding the layout, plantings and dimensions of the garden at his family’s home in Thornbury. The T documents also contained a number of photographs of the front and back yards of the premises.[41] On the basis of this evidence the Tribunal finds:
[41] T29,116-119; T16, 49-50.
a.The house and garden are on a level block of land.
b.In the front of the house the garden consisted of:
i.a paved driveway and separate pedestrian pathway;
ii.a grass nature strip and a small area of lawn which together are approximately the size of three to three-and-a-half car parking spaces;
iii.three lilly pilly trees approximately 1.2m tall adjacent to the paved driveway;
iv.a bird of paradise plant;
v.a fern approximately 1.5m tall;
vi.approximately 10 linear metres of box hedges around the pathway;
vii.a weeping cherry rose tree;
viii.10 established standard rose bushes;
ix.a native shrub approximately 1.0m tall; and
x.a Yucca tree approximately 1.2m tall.
c.At the back of the house there is a small garden most of which is paved, which includes:
i.a small area of lawn approximately 8m x 3m;
ii.4 linear metres of box hedging in an elevated garden bed around an al fresco area;
iii.a lemon tree;
iv.a peach tree; and
v.some assorted plantings including a rosemary bush, tomato plants and a planting of parsley.
The principal garden tasks required are lawnmowing, weeding, pruning, hedging and edging.
The Applicant’s assessment of these tasks was:
d.the time needed to mow the lawns is 10-15 minutes at the front (incl. nature strip) and 10 minutes at the back;
e.the roses require pruning approximately 4 times per year;
f.the weeping cherry rose requires regular pruning approximately 4 times per year because it overhangs the pathway;
g.the lilly pillies require regular pruning because they impinge on the driveway;
h.the Yucca tree needs to be cut back 2 or 3 times per year;
i.the bird of paradise needs to be pruned twice per year;
j.the fern needs regular pruning;
k.the fruit trees require pruning once per year using a ladder; and
l.box hedges require trimming twice per year.
The Applicant asserted that the engagement of a professional gardener for two and a half hours per fortnight was not excessive and that it would take him much longer to complete the tasks required. The Respondent asserted that the time required is less than two-and-a-half hours per month. An occupational therapist who implemented a trial of lightweight gardening equipment to assist the Applicant with the gardening in November 2015 assessed the baseline time to complete various tasks using the equipment provided as: lawnmowing back yard (2 minutes), edging part of border (3 minutes), clearing backyard with a leaf blower (3 minutes) and weeding half backyard using a weed brush (3 minutes).[42]
[42] T19, 60-69.
The assessment of the amount of work required to maintain the Applicant’s garden and the time such work would take cannot be ascertained with precision. There has been no assessment of the frequency and extent of the work required by anyone with horticultural qualifications or experience. In addition, the work is almost entirely directed at managing plant growth and so is affected by seasonal and weather factors. The Applicant has not undertaken the work since 2006. An examination of the compensation paid to the Applicant under s 29 for this service over the period since 2006 indicates that approval has been on the basis of a reasonably modest requirement each month. The Tribunal notes that the garden is reasonably small and much of the surface is paved which involves lower maintenance. In addition, the work required to maintain a garden is heavily influenced by the tolerance and preferences of the gardener.
In assessing the issue of whether gardening services are reasonably required the best the Tribunal can do is to make a considered estimate on the basis of the evidence available. Having regard to the Applicant’s assessment, the limited information in the occupational therapists’ reports and the past experience of the services previously provided by the Respondent, the Tribunal determines that a reasonable estimate of the work involved would be around 2 to 3 hours per month on average and that it would vary from week to week.
The Applicant’s level of incapacity
The Applicant claimed in his written statement that there are no gardening tasks that he can do which do not exacerbate his pain.[43] He said that he has tried to do lawnmowing on various occasions but the twisting and turning causes him to suffer pain for several days.[44] He said he cannot cope with pruning and manual hedging.[45] He said further that he is unable to do any housework except occasionally washing his lunch dishes or vacuuming the kitchen floor. He said that his wife (mainly) and his children (sometimes) do all the housework. He said he cannot go shopping for more than a loaf of bread and a carton of milk because he cannot push a supermarket trolley or lift bags which weigh more than 10kg.
[43] Exhibit A1, [27].
[44] Ibid, [26].
[45] Ibid, [27].
However, in his oral evidence the Applicant confirmed that:
a.following his injury he was able to undertake gardening work at the Thornbury house prior to 2016 and previously when he lived with his parents and while living in the Northcote house;
b.his condition was improved by surgery in November 2010 and he resumed full-time employment in 2011;
c.he works a nine-day fortnight predominantly from home with a stand-up desk but occasionally he attends the office and undertakes field work;
d.he walks for 30 minutes after work each day;
e.he has been able to replace a light globe at home using a small ladder;
f.he was able to hand paint a door in his house;
g.in October 2021 he was admitted to hospital after injuring his right shoulder when he fell from a ladder while painting a wall in his house using a brush and bucket of paint;
h.he conceded that he would be able to prune the front of the rose bushes if he avoided leaning;
i.he accepted that he could prune the weeping cherry rose at chest height with shears;
j.he could prune the Yucca tree using shears;
k.he could trim the box hedges in the raised beds around the al fresco area; and
l.he could use a weed brush to poison weeds in the garden but would have to be careful with the poison.
Mr Ronald Haig, orthopaedic surgeon, assessed the Applicant in November 2016 and concluded that:[46]
…I do not believe his condition is such that he requires help with gardening. I believe he could manage this perhaps staging the chores involved.
[46] T24, 92.
An assessment by a qualified occupational therapist engaged by the Respondent in February 2018 concluded that, with appropriate adaptive strategies and equipment, the Applicant was capable of completing the required lawnmowing, edging, weeding and pruning, but noted that the Applicant was not agreeable to a trial of adaptive equipment and strategies.[47]
[47] T29, 110-122.
Having observed the demeanour of the Applicant in giving his evidence the Tribunal suspects that his aversion to gardening duties is partially motivated by a lack of interest in the activity rather than being solely due to his physical constraints. The lack of any genuine interest in the trial of lightweight adaptive equipment noted in the occupational therapist’s report of 6 February 2018 bears testimony to this and the comments of the reporter below are apposite:[48]
When presented with the opportunity to reconsider his position regarding adaptive equipment, [the Applicant] confirmed that his position remained unchanged. Directly dismissing participation in further occupational therapy intervention, [the Applicant] reported that he prioritises work and family over lawn mowing/edging and gardening activities and believes that the provision of Telstra-funded gardening support enables him to bring focus to these goals.
[48] T29, 112.
The Applicant’s treating physiotherapist is reported to have stated in August 2015 that it was reasonable for the Applicant to work towards independent gardening/lawnmowing over a 3-6 month period.[49] This assessment was relied upon by an occupational therapist in recommending a program of low back/core strengthening to assist in a gradual introduction to independent gardening.[50]
[49] T16, 50.
[50] Ibid, 51.
Dr Boltin, who treated the Applicant for over 30 years, issued certificates of capacity over that time. He noted in his report of 30 March 2008 that he had provided a medical certificate for the Applicant allowing full-time modified duties from 1 December 2006 with restrictions of avoid repeated bending, prolonged sitting without movement and/or lifting weights greater than 10kg.[51] In his report of 11 July 2013, Dr Boltin noted clear limitations on the Applicant’s bearing which required him to be able to change his position at will including while travelling.[52]
[51] ST19, 64-67.
[52] T9, 27.
In his report of 2 March 2023 Dr Boltin noted that following his back operation in November 2010 the Applicant made steady progress under restrictions to avoid lifting, bending and stretching and to take rest breaks if required.[53] He stated that he believed the Applicant was not fit for heavy household or gardening duties. Dr Boltin explained that the reason he had consistently recommended home help/gardening in his certificates was the Applicant’s concern that if he increased his range of home activities it would almost certainly lead to more severe symptoms of back pain.
[53] Exhibit A7.
In his oral evidence Dr Boltin stated that the Applicant’s back condition was stable if managed and the best strategy was to use analgesics and avoid aggravation. He said heavy work was most likely to aggravate the symptoms. He said he was concerned that the Applicant would be tempted to do too much if he did not receive gardening support and risk aggravating his back condition. He confirmed that his recommendation has been to limit lifting to less than 10 kg but deferred to the recommendation of Dr Slesenger to limit it to 5 kg. When questioned about what he understood by the term heavy housework or gardening he said he was not an expert on household tasks and was not qualified to comment on the use of the light-weight tools provided as part of the trial in 2015. He conceded that the Applicant may be able to perform some light tasks but was concerned that if required to do so he is the type of person who will try to do too much and will aggravate his condition.
Dr Boltin’s concern that the Applicant is the type of person who will try to do too much if required to do the gardening work is directly at odds with the evidence of the Applicant who stressed that he always acts in accordance with his doctor’s instructions and observes the restrictions they recommend. His evidence was that he has for many years avoided doing all but the most minimal housework. This was corroborated by other members of his family. The Tribunal does not accept that the Applicant will be at risk of doing too much if he is not provided with gardening services.
Mr Chehata reported in September 2023 a history in which the Applicant reported that he had been unable to perform any of the repetitive gardening work around the house even though he had tried.[54] He noted that the Applicant had reported an ongoing inability to get in and out of confined spaces and a struggle with squatting, bending, stretching or twisting.
[54] Exhibit A3, 4.
However, Mr Chehata’s clinical examination noted that the Applicant was able to flex to 70 degrees and extend to 10 degrees with a rotation left to 40 degrees.[55] He could raise his heel and toes and had no restriction of hip flexion on the right or left. The Applicant had no wasting and was able to weight bear. The sciatic nerve was intact with no suggestion of radiculopathy or myelopathic features. He confirmed that an assessment of 13% Whole Person Impairment under the Comcare Guides was appropriate.[56]
[55] Ibid, 5.
[56] Ibid, 7.
Mr Chehata opined that the provision of a gardener for two and a half hours per month was very reasonable and not excessive.[57] However, he did not conduct any analysis of the work involved in maintaining the Applicant’s garden and did not offer an opinion on the extent to which the Applicant’s condition affected his ability to perform any particular tasks. Mr Chehata’s clinical examination and overall assessment of the degree of permanent impairment resulting from the Injury suggests that the Applicant has some capacity to perform some gardening tasks.
[57] Ibid, 6.
Dr Slesenger’s assessment in April 2023 was that the Applicant could perform light gardening tasks within the capacity limits of no push, pull, carry or lift over 5kg and avoiding repetitive bending or twisting prolonged static postures and exposure to whole body vibration.[58]
[58] Exhibit R1.
On the basis of the evidence as a whole, the Tribunal is satisfied that the Applicant has limitations on what work he could do in the garden without exacerbating his back condition. However, there is much he could do safely, particularly if he were prepared to embrace the concept of using lightweight gardening tools of the kind offered to him on trial in 2015.
The assessment of what services the Applicant reasonably requires goes beyond his own capabilities and requires a consideration of the circumstances of other members of his household.[59] In this respect, the Tribunal is required by s 29(2) to consider the specific matters listed in paragraphs (a)-(e).
(a) To what extent did the Applicant undertake garden services including lawnmowing, hedging, pruning and weeding before the date of injury and to what extent was he able to provide those services after that date?
[59] See Carr v Australian Postal Corporation [2005] AATA 817 at [32]; Chowdhary v Comcare [1998] AATA 448 at [60].
The Applicant gave evidence that he purchased the Northcote property in April 1991 and rented it to tenants for several years subsequently moving in himself before he was injured in March 1995. He sold the Northcote property in March 1995 a few weeks after his injury and continued to live in the house until the sale settled. He said he then moved to live with his parents until he married and moved to his current house in January 2001. His evidence was that he maintained the garden at the Northcote property during the time he lived there prior to his injury and he took care of the garden at his parents’ place while he lived there between 1995 and 2001 because his father was ill. He said the work at both houses involved lawnmowing, hedging, pruning and weeding. He said he then cared for the garden at his current home in Thornbury until around 2006 when he was experiencing greater pain and his doctor advised him to get a gardener and he was granted compensation from the Respondent in relation to gardening services pursuant to s 29 of the SRC Act.
The Respondent highlighted that the history taken by Dr Phillip Mutton, occupational physician, in May 2000 referred to the Applicant living with his parents ‘where he has lived for the last 31 years’ with no mention of him living at the Northcote property.[60] The Applicant was also taken to the report of an occupational therapist in February 2018,[61] which stated that the Applicant was ‘not primarily responsible for, or engaged in, lawn mowing/edging or gardening activities at the time of his accepted injury as he was living with his parents’, and to a similar statement in an occupational therapy report of July 2022, which stated that prior to his injury the Applicant was not responsible for gardening work as ‘he lived at his parents’ property and they completed these tasks’.[62] The Applicant sought to explain the discrepancy between these histories and his evidence in his written statement[63] by admitting that he had mistakenly misinformed the occupational therapists because he answered their questions on the spot without access to documents. He said that now having checked realestate.com records,[64] he had discovered that he was living at the Northcote property at the relevant time.
[60] ST8, 29.
[61] T29, 112.
[62] T35, 135.
[63] Exhibit A1, [19].
[64] Exhibit A2.
The realestate.com record does corroborate the Applicant’s evidence that he purchased the Northcote property on 13 April 1991 and sold it on 30 March 1995, but it says nothing about where the Applicant was living at the time of his injury or about his involvement in gardening activities. The Tribunal does not accept the explanation given by the Applicant as to why he misinformed the occupational therapists. The Applicant himself was vague about the time he says he lived at the Northcote property, merely asserting that he rented the house out for several years before moving in himself for an unspecified period. On balance, the Tribunal is not satisfied that the Applicant had engaged in gardening activities at the Northcote property prior to the date of injury. However, the Tribunal does accept that the Applicant performed some gardening work after the injury at his parents’ property and at his current home between 2001 and around 2006.
In any event the Tribunal gives little weight to this issue. Clearly the Applicant had the ability to perform gardening work if required prior to his injury whether he did so or not. Whether he now reasonably requires gardening services is more about the extent to which his injury has created a reasonable need for such support, rather than whether he actually performed the work prior to his injury.
(b) The number of persons living with the Applicant as members of his household, their ages and their need for household services
On the basis of the evidence of each of the witnesses, the Tribunal finds that the Applicant’s household currently consists of the Applicant (aged 55), his wife Beatrice (aged 52), his son Peter (aged 21), and his daughters Angelina (aged 18) and Jacinta (aged 14).
There is no evidence that any of these family members has a separate need for household services.
(c) The extent to which members of the Applicant’s household provided gardening services prior to the injury
The Respondent accepted liability for injuries to the Applicant’s lower back following incidents at work in 1995 and 1996. The Applicant and Beatrice were not married until 2000. His oldest child, Peter, was not born until 2002. On the basis of this evidence the Tribunal is satisfied that members of the Applicant’s household did not provide any gardening services prior to the date of injury.
(d) The extent to which members of the Applicant’s household or other family members might reasonably provide gardening services after the injury
To date the members of the Applicant’s family have not provided any assistance with the gardening needs of the household, save for Beatrice who tends a small vegetable plot and grows tomatoes and strawberries. The Applicant gave evidence that he performed the gardening himself prior to 2006 and thereafter the Applicant has been able to engage the use of a gardening service with compensation provided by the Respondent under s 29 of the SRC Act. As a result, the family has not needed to incorporate gardening tasks into their family arrangements.
Beatrice acknowledged that she had been involved in growing tomatoes, including planting, staking, watering and picking them. She said she had no confidence that she could undertake tasks such as trimming the box hedges and said she could get knee pain if she knelt down to do the weeding and using shears could affect her tennis elbow condition. Beatrice did not provide any medical evidence to corroborate her claimed medical conditions. Her evidence generally did not suggest that she suffers from any significant impairments. She said that she does suffer from migraines but with minimal assistance from her children she is able to complete all of the household tasks such as washing, cleaning, cooking, shopping, vacuuming and dusting for her own family, as well as assisting her own mother and mother-in-law, and is able to work part-time as a canteen assistant.
Peter and Angelina each gave evidence that they have no experience of gardening and have not acquired skills in the use of gardening tools. The Applicant said that he did not trust Jacinta to do pruning or trimming because she lacked coordination and could injure herself with the shears or secateurs. Peter and Angelina expressed no interest in gardening. Nevertheless, Peter acknowledged in his evidence that he was physically capable of mowing the lawns, and if told what to do could climb a ladder and prune trees and prune rose bushes. Angelina said she knew nothing about weeding but could do it if instructed by the Applicant and acknowledged that she could trim the box hedges if shown how to do it.
Both Peter and Angelina indicated by their demeanour in the witness box and by their academic pursuits that they are intelligent and motivated young people. Both appeared to be physically fit and have been active in playing sport. They each have made a modest contribution to the housework tasks and accepted that they could do more of required.
(e) Is there a need to avoid substantial disruption to the employment or other activities of the members of the Applicant’s household?
The evidence of Beatrice was that she currently works part-time as a canteen assistant approximately 11 hours per week, from 10.30am to 2.00pm Tuesdays, 10.00am to 1.45pm Wednesdays and 10.00am to 1.45pm Thursdays, with some irregular additional hours and sometimes on Mondays or Fridays if required. In addition, she currently visits her mother, who is 73 years old and has recently injured her shoulder, on Fridays and assists her with cooking and cleaning. She also helps her mother-in-law with her household whenever time permits. In the past she has looked after her sister’s two young children for a few hours per week, but not in recent times.
The evidence of Peter was that he is currently about to commence studying for a Bachelor of Architectural Design which will involve contact hours at university during term time from 11.30am to 2.30pm on Tuesdays, 11.30am to 2.30pm on Thursdays and 2.30pm to 5.30pm on Fridays. He estimated that, including study time away from campus, his course involved around 39 hours per week. He also has done some project work as a building designer for 10-20 hours once every few months and has a regular part-time job coaching tennis approximately 6 to 7 hours per week at times yet to be finally determined. He plays competitive tennis on Thursdays from 7.00pm to 10.00pm with 2 hours of training on Monday evening each week.
The evidence of Angelina was that she is about to commence a Bachelor of Engineering course which will involve contact hours at university during term time from 10.30am to 6.30pm on Tuesdays, 10.30am to 6.30pm on Wednesdays and 2.30pm to 3.30pm on Fridays. She also works casual shifts at a McDonald’s restaurant up to 15-20 hours per week.
The Applicant gave evidence that Jacinta is currently in year 10 at school. Jacinta did not provide a statement or give evidence herself.
On the basis of this evidence, the Tribunal is satisfied that there is a need to avoid substantial disruption to the employment and other activities of each member of the Applicant’s family and especially to the educational pursuits of Peter, Angelina and Jacinta. However, the commitments of each member of the family involve a fair degree of flexibility and there is a reasonable availability of free time, especially on weekends. The work required in the garden is not time-critical and is variable from week to week and from season to season. This should enable each member of the family to contribute to the gardening up to one or two hours per week if needed without substantial disruption to their employment, study or other activities.
CONCLUSION
The representatives of both parties encouraged the Tribunal to rely on its common knowledge in assessing the evidence. The Tribunal hesitates to do so in relation to the nature and extent of the tasks involved in maintaining the Applicant’s garden, preferring to be guided by the evidence of the Applicant himself and of the job capacity assessors. However, the Tribunal does make one observation of a very general nature from its own experience. One constant of life in the great sprawl of suburbia in our big cities and rural townships is the commitment of the family unit to the maintenance of the home and the garden. Each family has its own way of doing things. In some cases it is the parents who together take on the task of cultivating and taming the plants. In others, one of the parents will see the garden as their domain. For others the tasks are shared and the children play a role. Standards vary widely. Not every lawn is manicured. Species of plants in one garden will take on a shape determined only by the space available and the prevailing weather, while in another the same species will be pruned into the shapes of animals or precise geometric forms. There is no single way for a family to approach this task. Each finds a way which suits the physical capacities of individuals, their interests and skills, the time each has available and their cultural backgrounds.
The Scarmozzino family has the capacity to maintain their own garden. Between them they have enough time to complete the work required if they share the tasks. The Applicant has physical limitations, but he has relevant knowledge and experience and is capable of some things. The older children are not constrained by physical limitations and are more than capable of learning what needs to be done. Beatrice has assumed almost sole responsibility for the domestic work of the household. There is scope for her to be relieved of some housework to free up her time so that she could also contribute to the gardening, but whether she does so is a matter for the family to decide.
The Tribunal is not satisfied that the Applicant reasonably requires the gardening services he has applied for.
It is unnecessary to consider the second question as to the amount of compensation that is reasonable in the circumstances.
DECISION
The decision under review is affirmed.
1. I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Member R West
..................................[sgd]......................................
Associate
Dated: 8 March 2024
Date of hearing:
19-20 February 2024
Counsel for the Applicant
Ms Cassie Serpell
Solicitors for the Applicant
Angela Sdrinis Legal
Counsel for the Respondent
Ms Felicity Blair
Solicitors for the Respondent
HBA Legal
APPENDIX A
Exhibit Register A1 Applicant Statement dated 29 November 2023 A2 Annexure GS1 to Applicant Statement A3 Report of Mr Chehata dated 14 September 2023, including briefing letter dated 14 June 2023 A4 Statement of Beatrice Scarmozzino dated 20 July 2023 A5 Statement of Peter Scarmozzino dated 11 August 2023 A6 Statement of Angelina Scarmozzino dated 20 July 2023 A7 Report of Dr Boltin dated 2 March 2023, including Letter dated 16 January 2023 requesting letter about at home help R1 Dr Slesenger report dated 4 April 2023 R2 Clinical summary dated 24 October 2021 from St Vincent’s Hospital Melbourne
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Statutory Construction
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Remedies
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Procedural Fairness
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