St Clair and Australian Postal Corporation
[2001] AATA 580
•22 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 580
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/434
GENERAL ADMINISTRATIVE DIVISION )
Re BRUCE RAYMOND ST. CLAIR
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member Miss A.M. Brennan, AM, Member Dr. E. K. Christie, Member
Date22 June 2001
PlaceBrisbane
Decision The Tribunal varies the decision under review and determines that: 1. Bruce Raymond St. Clair has reasonably required household services of two hours per week and attendant care services of one hour per week since 1 September 1995, pursuant to the provisions of section 29 of the Safety Rehabilitation and Compensation Act 1988. 2. The compensation payable for attendant care services provided by Maria June St. Clair since 1 September 1995, not exceeding one hour per week, is payable to Maria June St. Clair. 3. The compensation payable for household services to the date of hearing relates only to those amounts actually paid by the applicant. 4. The Respondent to pay the Applicant's costs in accordance with the General Practice Direction.
..............(Signed)................................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
WORKERS COMPENSATION – household services - attendant care services – services provided by spouse – amounts paid or payable - whether payments for household services and attendant care services payable to family members
Safety Rehabilitation and Compensation Act 1988: s29 (1)(2)(3)(4)(6)
Re Torney and Telstra Corporation Ltd (1994) 20 AAR 94
Hopgood and Comcare (AAT No. 13229)
Re VXJ and Comcare (1990) 19 ALD 269
T.W. O'Connor and Australian and Overseas Telecommunications Corporation (unreported) (AAT No. 13229)
REASONS FOR DECISION
Mr. D.W. Muller, Senior Member Miss A.M. Brennan, AM, Member Dr. E.K. Christie, Member
This is an application to review a decision relating to liability for compensation for household and attendant care services pursuant to section 29 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
The Applicant, Bruce Raymond St. Clair, injured his back at work when he lifted a heavy mail bag at a postal exchange on 11 September 1991. He was totally incapacitated for work from 11 September 1991 to 20 October 1991.
The chronology for the period from 21 October 1991 to early 1992 is uncertain from the documentation and evidence available to the Tribunal but it seems that the following is fairly close:
(i)On 21 October 1991, he returned to part-time light duties at the Roma Street State Parcel Centre.
(ii)On 18 November 1991, he transferred to the Australia Post Security Section.
(iii)From 2 December 1991, he began full-time restricted duties.
(iv)As part of his security duties he had to work in Maryborough in February 1992. This necessitated his driving back and forth from Brisbane to Maryborough. The trip from Brisbane to Maryborough takes approximately five hours.
(v)Prior to his period of employment at Maryborough, Mr. St. Clair had reported that he had been walking 45 minutes almost every day, he was mowing his lawn and assisting with housework and child care. He also said that he was not taking any painkillers but had taken anti-inflammatory medication, Oridis, for two weeks.
(vi)A report dated 11 February 1992, by an occupational therapist, Elli Goodfellow, contained the following:
"Mr St Clair has been working in the Security Section of Australia Post since 18 November 1991 to determine his suitability for this type of work both physically, socially and intellectually. A recent assessment of his performance undertaken by the Security Section indicates that he is not considered suitable for this type of work due mainly to a lack of tertiary achievement and skills in law or investigation skills. Interpersonal skills were also not thought to be adequate. A physical assessment by Security indicated no problem coping with the demands of the work.
Mr St Clair is therefore to return to State Parcels Centre on 17 February 1992."
(vii)Coincidentally, Mr. St. Clair's back pain returned in February 1992. He attributed the return of the pain to his having to drive to Maryborough.
(viii)He finished with the Security Section on 14 February 1992 and recommenced at the State Parcel Centre on 17 February 1992, on restricted duties.
(ix)In March 1992, he transferred to the position of rosters clerk at the State Parcel Centre. He had no physical problems in coping with this work.
(x)By November 1992, Mr. St. Clair had become disenchanted with his job at Roma Street. He investigated applying for a voluntary early retirement package (VER). He told various associates that he was interested in doing a course in computer studies.
(xi)Mr. St Clair was offered a position as a mail officer at Roma Street until it closed and then at Northgate or Springwood Mail Exchanges. He declined to accept the offer.
(xii)Mr. St Clair's application for a VER was eventually accepted and he ceased work with Australia Post on 10 February 1993.
In February 1993, Mr. St. Clair began a computer course at the Caboolture TAFE. He lived at Strathpine which is approximately 30 kms from Caboolture. He bought a motor cycle in February 1993, specifically to go to the Caboolture TAFE. The motor cycle was relatively large, a Honda 750. He had actually owned the motor cycle previously and sold it in 1986. He bought it back from the person to whom he had sold it. Later, in 1993 or 1994, he sold the Honda and bought a Suzuki GS 1000, which he still owns. He eventually used the motor cycle less and less because he was able to get a lift by car with a fellow student.
Mr. St. Clair's results at TAFE were very poor. He failed a number of units and ceased attending the TAFE on or about 30 May 1994. He says that he ceased due to increased pain and increased use of pain killers.
Towards the end of 1994, Mr. St. Clair worked for about two months as a process server. He had to drive to the various locations and deliver the documents.
He then received unemployment benefits until April 1995. Since April 1995 he has received Social Security sickness benefits and disability support pension until his claim for workers compensation was accepted by the Administrative Appeals Tribunal on 24 September 1999. The Administrative Appeals Tribunal found that Mr. St. Clair had deteriorated during 1995 and fixed 1 September 1995 as the date from which he was totally and permanently incapacitated for work, with a 20% permanent impairment.
Mr. St. Clair claims that since his accident on 11 September 1991, he has required household services and attendant care services because of his back injury to the following extent:
(i)Household chores such as, washing up, hanging out washing, house cleaning, ironing and cooking, house and garden maintenance such as mowing, weeding, gardening, cleaning up rubbish and house maintenance. That is two hours per day.
(ii)Getting out of bed and getting dressed (30 minutes per day), assisting to get him in and out of bath and clean his back and toes (45 minutes per day), supervision and organisation of medication (15 minutes per day), assistance with putting on the TENS unit (15 minutes per day), rubbing back and assistance with exercises (15 minutes per day), cutting toe nails. That is, two hours per day for attendant care services.
Mrs. St. Clair has provided all of Mr. St. Clair's attendant care services. Mr. St. Clair has paid a man to do some mowing and a woman to do some housework.
The applicant's claim is made pursuant to the provisions of section 29 of the SRC Act, the relevant parts of which are:
"SECTION 29 COMPENSATION FOR HOUSEHOLD SERVICES AND ATTENDANT CARE SERVICES
29(1) [Amount payable re household services] 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 for 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.
29(2) [Considerations] 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).
29(3)[Amount payable re attendant care]
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.
29(4) [Considerations] Without limiting the matters that Comcare may taken 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.
……
29(6) [To whom payable] 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."
The Reconsiderations Delegate for Australia Post made a determination on 20 March 2000 which contained the following concession to Mr. St. Clair.
"In making this decision I have taken into account all relevant information and in particular the following factors. The Administrative Appeals Tribunal handed down a decision on 24 September 1999 in which it was determined that the Applicant was totally and permanently incapacitated for work from 1 September 1995 as a result of a work injury. It was also determined that Australia Post was to compensate the Applicant for household and attendant care services although the amount of the assessment was left to the Claims Manager to determine.
The Claims Manager determined that in relation to attendant care services, "at most an allowance of 30 minutes per day might be reasonable". In relation to household services he was "unable to find that such an entitlement exists, apart from normal gardening costs." The Claims Manager then went on to find that the assessment of prior entitlements fell under the provisions of the case Bailes v Comcare and as such no entitlement exists. In relation to future claims an amount of three and a half hours per week for attendant care services was deemed reasonable."
The assessment of Mr. St. Clair's needs is complicated by the fact that there is not really much wrong with his back. He has developed psychological problems which cause him to believe he has a bad back. The Tribunal also has problems with Mr. St. Clair's credibility.
A diagnostic report of Dr. Matthews dated 27 April 1995 contains the following:
"C.T. LUMBAR SPINE
Scans of the lumbar spine were performed from L3 to S1.
Findings: The L3/4 disc has a normal appearance and there is no disc herniation evident.
At L4/5 there is a slight central posterior bulge of the disc but there is no focal herniation visible. The nerve roots appear to exit freely.
At L5/S1 there is a central posterior protrusion of the disc which is indenting the anterior aspect of the thecal sac. The nerve roots however appear to exit freely. There is no significant spinal stenosis evident.
Comment: There is a prominent posterior bulge of the disc at L5/S1 but this does not appear to be compromising the nerve roots."
A psychiatric report from Dr. Apel, dated September 1999 contained the following:
"There are a combination of severe psychological and medical factors at play. Both these issues are treatable in themselves, but the presence of significant pain and medical disability handicaps management of psychiatric illness and similarly, visa versa. I would note Mr St Clair relates pain symptoms of a severity that precluded work. On the psychiatric side he displays features of depression and significant therapeutic drug dependency. Given the duration of both these conditions, they are likely to persist for the foreseeable future, certainly five years and possibly longer than that."
As to the credibility of Mr. St. Clair, the Tribunal notes the following matters:
(i)The purchase of two large motor cycles at a time when he was supposed to be so disabled that he could not do a sedentary job and needed assistance to find his way to the toilet, get into and out of his bath and dress himself.
(ii)He still drives his car. His wife and daughter have a significant social life outside the home. They do a lot of work for a charitable organisation. Mr. St. Clair's wife and daughter do not drive, he has to drive them to and from their activities.
(iii)He says that he cannot stand in a shower, he has to lie in a bath and he needs help to get in and out of the bath. He says that he cannot sit on a plastic chair in the shower because he tried it once and the chair broke. The Tribunal regards this part of the applicant's evidence as unacceptable. It is consistent with what the Tribunal believes to be an exaggeration of his incapacity.
(iv)It is difficult to see how he needs so much assistance each day when, according to the evidence of his wife, he spends most of his day in bed and his preferred footwear are thongs.
The question arose during the course of the hearing as to whether or not Mrs. St. Clair was entitled to receive any payment for her attendant care services. The Tribunal was referred to two cases in which it was held that work done by family members did not come within the ambit of s.29 of the SRC Act. See Re VXJ and Comcare (1990) 19 ALD 269 and T.W. O'Connor and Australian and Overseas Telecommunications Corporation (unreported) AAT No. 8692. The Tribunal was also referred to two cases in which it was held that family members were entitled to payment pursuant to s.29. See Re Torney and Telstra Corporation Ltd (1994) 20 AAR 94 and Hopgood and Comcare (AAT No 13229).
The Tribunal takes the view that subsections 29(2)(c)(d) and 29(4)(f) envisage that in a case such as this where the applicant's wife is fit and well and his daughter is 17 years of age, the applicant's wife and family should reasonably be expected to look after themselves and to also help the applicant to a reasonable degree, without expecting to be paid. The Tribunal also adopts to some extent the tenor of Torney and Hopgood, cited above, and finds that the wife and family should not have to bear an inordinate burden without recompense.
The Tribunal finds that Mr. St. Clair's wife and family should reasonably be expected to look after themselves and Mr. St. Clair so far as household chores are concerned.
The Tribunal does not accept that Mr. St. Clair required any paid care withinopHop the meaning of the terms "household services" and "attendant care services" in s.29 of the SRC Act from 11 September 1991 until about the middle of 1995. It was in 1995 that he deteriorated when he "discovered" how bad his back was. Apparently his back was reasonably good until he made that discovery. The Tribunal adopts the previous decision of the Tribunal in Mr. St. Clair's case and finds that he has reasonably required "household services" and "attendant care services" since 1 September 1995.
The Tribunal accepts that Mr. St. Clair requires some attendant care on a daily basis over and above that which his wife and family might reasonably be expected to provide, but the Tribunal does not accept that it is anything like as extensive as the applicant claims. The Tribunal does not accept that he cannot stand, or sit on a chair, in the shower, nor does it accept that he needs assistance to find his way to the toilet. The Tribunal finds that one hour per week would be ample to cover paid attendant care services.
The Tribunal also accepts that Mr. St. Clair requires some household services paid for, such as cleaning the yard, mowing the lawn and general maintenance. The Tribunal finds that a reasonable degree of assistance would entail the employment of a handyman for about one day (eight hours) per month. That is, two hours per week for paid household services.
The Tribunal further finds that although Mrs. St. Clair was not actually paid for her attendant care services, it was payable to her and she should be paid for one hour per week from 1 September 1995, unless or until she ceased or ceases to provide the attendant care services.
The Tribunal further finds that in the case of household services, it is only those amounts which have been or will actually be paid for work done outside the home or of maintenance in and about the family home which is payable.
The respondent is to pay the applicant's costs in accordance with the General Practice Direction.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member; Miss A.M. Brennan, AM, Member and
Dr. E. K. Christie, MemberSigned: .....................................................................................
R. Hayes, AssociateDate/s of Hearing 3 May 2001
Date of Decision 22 June 2001
Counsel for the Applicant Mr. J. Kimmins
Solicitor for the Applicant Spranklin Solicitors
Counsel for the Respondent Miss K. Downs
Solicitor for the Respondent Clarke and Kann
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