DOMESTIC ASSISTANCE – HOUSE PAINTING

Section 66AA of Workers' Compensation Act, 1987 - Domestic Assistance - House Painting

Mark Allan Bellamy v Watertech Resources Pty Limited (2017) NSWWCC 195

We acted on behalf of Mark Bellamy in proceedings in the Workers' Compensation Commission.  On 22 August 2017 Arbitrator Paul Sweeney ordered the Workers' Compensation Insurer of Mr Bellamy's employer to pay the labour costs of having a commercial painter paint the exterior of Mr Bellamy's home.

Mr Bellamy sustained various injuries in the course of his employment from 2001 to 2015.  He had various surgeries including a fusion of his cervical spine (neck).

As a result of his injuries, Mr Bellamy could not perform his usual domestic chores including general house and yard maintenance.  Mr Bellamy sent the Insurer a Certificate from his General Practitioner, accompanied by quotes for the cost of the house and yard maintenance and including quotes from commercial painters to perform internal and external painting of his residence.

Mr Bellamy's GP requested the insurer to approve these commercial quotes, and pay the various contractors pursuant to Section 60AA of the 1987 Act.

The Insurer arranged for an Occupational Therapist to assess Mr Bellamy's domestic assistance.  The OT accepted that Mr Bellamy did not have the physical capacity to perform the house painting but advised the insurer that the painting assistance was not a task that was part of normal domestic assistance.  The Insurer declined liability for the cost of the paining.  Mr Bellamy then paid for the cost of the painting himself.

On 23 February 2017 an AMS assessed Mr Bellamy as having a 32% Whole Person Impairment (WPI).

In April 2017 Mr Bellamy sold his home and moved into new premises at another address.  Those new premises included a swimming pool.  Mr Bellamy arranged for a pool cleaning company to attend once a month and maintain the pool and its equipment.  He paid the pool cleaning company $87.00 per month for their services.

The insurer declined to pay the cost of the pool cleaning.  The Insurer's OT agreed that Mr Bellamy could not do the pool cleaning.

At the hearing the Insurer submitted that "house painting" was outside the ambit of "domestic assistance" and Mr Bellamy was not entitled to "pool maintenance" because he had not performed that task prior to his injury, as prior to his injury his then home did not have a pool.

Arbitrator Paul Sweeney considered various authorities regarding the ambit of domestic assistance within Section 60AA of the 1987 Act.

The Arbitrator found that there was sufficient evidence to establish that Mr Bellamy needed assistance to do "house painting" and "pool maintenance" and accepted that he was not physically able to do those tasks.

In relation to the painting, the Arbitrator considered the Guidelines and noted the lack of a specific definition of "domestic".  He found that the primary meaning of "domestic assistance" was sufficiently wide to encompass periodic painting of his home, and could not now do it, the assistance was reasonable and allowable pursuant to Section 60AA of the 1987 Act.

In relation to the pool maintenance, the Arbitrator considered what is said in Section 60AA(1)(b) of the 1987 Act:

"(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 ..."

The Arbitrator held that while that language is difficult, all the words of that subsection must be given their due weight and he found that that subsection, in the context of the entire Section 60AA appears to restrict compensation for domestic assistance to the type of domestic chores that the worker did prior to the injury.  He found that as Mr Bellamy did not have a pool, prior to the injury, he could not claim the cost of the pool maintenance, even though it was accepted that he could not undertake the pool maintenance as a result of the injuries that he sustained in the accident.

The Arbitrator held noted that Mr Bellamy was initially seriously injured in 2001 and that he was considering domestic assistance that he needed in 2017.  The Arbitrator commented that the Act and Guidelines, currently, do not make any provision for a change in circumstances of a worker, even if that change in circumstances is as a consequence of the injury sustained in the accident.

The outcome was that the Arbitrator awarded Mr Bellamy the cost of the house painting, but only the cost of the labour, not the paint.  If Mr Bellamy had been painting the house himself he would have had to purchase the paint.

The Arbitrator did not allow the cost of the pool maintenance, with some reluctance.

We also acted in the only other case that has ever dealt with house painting.  That was a Decision made by Arbitrator Dennis Nolan in a matter of John Miller v Agata Excavations Pty Limited (Matter Number 16028/12 delivered on 3 March 2014).

Having regard to the Decision in Bellamy, if an injured worker wishes to have the insurer pay for the cost of commercial domestic assistance, including house painting, the following steps should be taken:-

1. The injured worker must have a Whole Person Impairment (WPI) of at least 15%.  Below 15% WPI the domestic assistance can only be provided on a temporary basis for up to 6 hours per week, for up to 3 months.  Even then it may be useful if the worker is recovering from an operation to have the domestic assistance for 3 months.
2. The proposed domestic assistance has to be a domestic chore that the worker performed before his or her injury, and which the worker cannot do now because of the injury.
3. Obtain a quotation for the domestic assistance from a commercial contractor.
4. Take the quotation to the Nominated Treating Doctor (NTD) and have the NTD certify, on the basis of a functional assessment of the worker, that it is reasonably necessary that the worker be provided with the assistance and that the need for the assistance arises as a direct result of the injury sustained at work.
5. The NTD then has to write to the insurer making the request for the assistance and providing the insurer with the functional assessment outcome and a copy of the quotation.
6. When the insurer receives the request from the NTD, in proper form, the insurer MUST establish a care plan in accordance with the Workers' Compensation Guidelines.

If the Insurer refuses or neglects to establish a care plan, or provides the worker with a note declining liability for the particular domestic assistance requested (Section 74 Notice) the dispute can be referred to the Workers' Compensation Commission who has jurisdiction to order the Insurer, in appropriate circumstances such as Mr Bellamy's matter, to pay for the domestic assistance on an ongoing basis.

Workers who are only 21% WPI or greater, are entitled to domestic assistance for life.