Where medical and allied-health evidence establishes that the provision of domestic services would be detrimental to a claimant's condition and likely to foster dependency, the...
When a claimant resides with other able-bodied adult household members, the Tribunal may judge the necessity of funded domestic services in light of the reasonable expectation...
The Tribunal is entitled to prefer the evidence of specialist medical practitioners and occupational therapists over a general practitioner or non-medical witnesses, and to base...
Issues before the court
Is the applicant entitled to domestic services funded by the Transport Accident Commission under s 60 of the Transport Accident Act for the tasks...
What weight should be given to conflicting medical evidence (GP and psychologist versus specialists and occupational therapists)?
Does the presence of able-bodied adult family members reduce the reasonableness of funding domestic services?
Plain English Summary
VCAT refused the applicant's claim that the TAC must pay for fortnightly domestic cleaning. The Tribunal accepted evidence from a rheumatologist and two occupational therapists that providing home-help would likely worsen the applicant's condition and foster dependence; it also found it reasonable to expect the applicant's husband and adult son to assist with heavier household tasks. On that basis the Tribunal held the requested services were unreasonable and affirmed the TAC decision.
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Deep Dive
2,024 words · generated 22/06/2026
What happened
Maria Pilato applied to VCAT for review of the Transport Accident Commission's refusal to provide domestic services (cleaning of showers, toilets, vacuuming, dusting hard-to-reach areas) at her home. The alleged causal event was a rear-end motor vehicle collision on 23 October 1995, for which the applicant claimed ongoing neck, back and chest pain, a chronic pain syndrome and depression. The TAC refused to fund the services on 15 September 2008 and, after internal review on 27 October 2008, maintained that refusal. The applicant sought review in the Victorian Civil and Administrative Tribunal.
Cited legislation
No linked legislation citations have been extracted yet.
At hearing on 25–26 May 2009 before Senior Member Robert Davis, the evidence comprised reports and oral testimony from the applicant and a range of health professionals:
Dr Chiew, the applicant's general practitioner, provided a written report stating the applicant's accident-related injuries, restrictions and a view that she could do only light domestic tasks and not mopping or heavy cleaning.
Mr Postlethwaite, a clinical psychologist who had seen the applicant, gave oral evidence concerning the applicant's depression and need for help.
Two occupational therapists assessed the applicant: Ms Mealor (report dated 31 July 2008) and Ms Mintrom (assessed 30 April 2009, report 10 May 2009). Both concluded the applicant could pace normal domestic tasks and that provision of home-help risked dependency; they recommended family members contribute.
Two rheumatologists gave reports/examinations: Dr Kostos (exam 24 April 2009, gave oral evidence) and Dr Ebringer (exam 4 May 2009, report tendered). Dr Kostos found restricted active movements and expressed the view that the applicant has chronic pain syndrome with features consistent with fibromyalgia, but he was sceptical that the accident was the primary cause, and concluded that providing home-help would reinforce an invalid role and be detrimental. Dr Ebringer found normal passive ranges of motion, diagnosed chronic pain syndrome with fibromyalgia and severe depression, but nonetheless expressed that there was significant disability for daily living.
The Tribunal weighed that expert evidence, observed an older DVD depicting the applicant undertaking activities between 1997 and 2003, and heard the applicant's account of limited household help from her husband and adult son. The Tribunal accepted the evidence of Dr Kostos and the two occupational therapists as sincere and persuasive, concluded provision of the requested domestic assistance would be detrimental and would likely create dependency, and also held there was a reasonable expectation that the cohabiting adult household members could assist with the heavier tasks. The Tribunal therefore found it unreasonable for TAC to supply the requested services and affirmed TAC's decision. The written reasons were published 28 May 2009.
Why the court decided this way
Two legal strands drove the decision: (1) assessment of whether provision of services was reasonable in the applicant's medical and rehabilitation context, and (2) assessment of whether household members' responsibility to assist reduced the necessity for TAC-funded services.
Reasonableness and rehabilitation risk
The Tribunal evaluated medical and allied-health evidence on functional capacity and the rehabilitative effect of services. It accepted the view of the rheumatologist (Dr Kostos) and two occupational therapists that implementing ongoing domestic-help would risk creating dependence and could be detrimental to the applicant's recovery or functional outcomes. The Tribunal said it was "detrimental for the applicant to have the domestic assistance" and that, on that basis, supplying the service would be unreasonable ([final paragraphs], see conclusions quoted in the reasons). The key legal point is not that every medical diagnosis entitles a claimant to services, but that if funded services would impair rehabilitation or foster dependency, the Tribunal may properly refuse them as unreasonable.
Household contribution
The Tribunal applied the well-known principle that, where a claimant lives with other capable adult household members, the necessity of paid services must be judged in light of reasonable expectations of assistance by those members. The reasons quote and rely upon Wakim v TAC (unreported AAT) reasoning to this effect. Applying that principle to the facts, the Tribunal found the husband and adult son were capable and it was reasonable to expect them to assist with heavier or less frequent tasks (for example, bathroom cleaning), reducing the claimant's entitlement to TAC-funded services for those tasks.
Weight of evidence and credibility
The Tribunal explicitly evaluated and preferred the specialist and occupational therapy evidence over the applicant's GP and psychologist. Reasons included the extent and methodology of examination, the occupational therapists' home assessments, and the consistency and perceived sincerity of the witnesses. The Tribunal noted limitations in the GP's evidence (and that he was not cross-examined), but did not treat that absence as fatal to the GP's evidence. The Tribunal's choice of which expert evidence to accept was critical to its conclusion about detriment and capacity.
Taken together, the conclusion was that provision of the requested services was both potentially detrimental and unnecessary given household assistance; accordingly the Tribunal affirmed TAC's refusal.
Before and after state of the law
Before this decision:
s 60 of the Transport Accident Act (as at the time of the accident) provided the statutory framework for provision of domestic assistance. It permitted TAC to supply domestic services for the claimant and limited assistance to other family members to a five-year period.
Administrative practice and prior authorities (including Wakim v TAC) had established that the Tribunal must assess need against both clinical rehabilitation aims and the reasonable expectations of household assistance.
After this decision:
Pilato v TAC demonstrates the Tribunal's readiness to refuse domestic services where experts conclude such services would be detrimental, and to apply the household-contribution principle strictly. The decision reinforces two points:
a) The rehabilitative impact and potential for dependency are proper grounds for refusing services.
b) Cohabiting able-bodied adults' expected contributions carry weight in the assessment of necessity.
The decision therefore affirms that provision of services under s 60 is not automatic upon diagnosis of disability; rather, the Tribunal must balance clinical evidence, household context and statutory limits.
Note: the Tribunal expressly observed that the statutory provisions under consideration have since been amended; however the decision applies the law as it existed at the time of the accident.
Key passages with plain-English translation
Tribunal acceptance of experts and detriment finding
Quotation (Tribunal): "I accept the evidence of Dr Kostos and the two occupational therapists. They genuinely had the applicant's interests at heart and it would be detrimental for her to have the domestic assistance that she is seeking."
Plain English: The Tribunal believed the specialist doctor and the occupational therapists over the GP and psychologist. Those experts said home-help would probably harm the applicant's recovery or increase her dependence, so the Tribunal relied on that opinion.
Household-contribution application
Quotation (Tribunal): "Applying that law to the present circumstances, I find that there is a reasonable expectation that both the applicant's husband and her 24 year old son do the tasks that the applicant said are heavy and she finds too difficult."
Plain English: Because she lives with two capable adults, the Tribunal decided it was fair to expect them to help with the heavier chores, so TAC did not have to pay someone else to do those chores.
Legal nexus between detriment and unreasonableness
Quotation (Tribunal): "Therefore, I now find that it is detrimental for the applicant to have the domestic assistance that she is seeking, it necessarily follows that it would be unreasonable for that service to be supplied to her."
Plain English: If giving the home-help would be bad for the applicant (rehabilitation-wise), then it is not reasonable for TAC to fund it.
On weighing evidence
Paraphrase: The Tribunal noted the GP was not cross-examined but declined to draw a strong adverse inference because the applicant acted in person; nonetheless the Tribunal gave greater weight to specialists' assessments based on the nature of their examinations and their methodology.
What fact patterns trigger this precedent
Pilato is most directly applicable where:
An applicant seeks TAC-funded domestic services (cleaning, heavy household tasks) arising from a transport accident injury.
There is conflicting medical and allied-health evidence about functional capacity and rehabilitation prognosis, notably where specialists and occupational therapists contend that funded services would facilitate dependency or otherwise be detrimental.
The claimant cohabits with one or more able-bodied adult household members capable of assisting with heavier tasks.
Evidence shows the claimant has some ability to perform light domestic tasks with pacing or other strategies.
The TAC relies on expert assessments and argues household members should contribute.
In such fact patterns, Pilato supports refusal where the Tribunal prefers expert evidence that identifies detriment and where household contribution can reasonably be expected.
How later courts have treated it
This decision is an administrative tribunal decision (VCAT) applying both statute and prior AAT authority (Wakim). Its direct precedential weight is within administrative/tribunal review contexts and persuasive to tribunals and courts considering similar claims. Pilato reinforces these themes:
Emphasis on multidisciplinary assessment (OTs, specialists) over generalist or sympathetic treating GPs when there is a reasoned basis for the preference.
Willingness to apply rehabilitation policy (avoid fostering dependence) as a legitimate ground to refuse on reasonableness.
Confirmation that household composition is a relevant factor; living with able-bodied adults will reduce TAC's liability for funded services.
Practitioners should note that higher courts may review VCAT's application of law or jurisdictional error, but absent such errors, Pilato is a clear example of how VCAT approaches these issues. It therefore functions predominantly as persuasive tribunal guidance rather than binding appellate authority.
Still-open questions
Degree of household obligation where household adults work long hours
The Tribunal found it reasonable to expect assistance even where husband and son worked long hours and said they were tired. The decision does not provide a granular test for when the work commitments of household members negate the 'reasonable expectation' of assistance. Future cases will need to delineate the line between reasonable and unreasonable expectations, particularly where household adults have significant external work demands.
Quantifying detriment and dependency risk
Pilato accepted expert evidence that services would be detrimental. The decision does not set out a detailed framework for quantifying the risk of dependency or what specific features of services (frequency, duration, task scope) convert otherwise rehabilitative assistance into harmful dependency. That leaves open questions about how to structure limited, time-limited or targeted services to manage such risks.
Weight to be accorded to treating GP vs specialists
While Pilato preferred specialists and occupational therapists, the Tribunal acknowledged the GP was not cross-examined and resisted drawing an adverse inference. The boundaries for when a treating GP's consistent opinion should outweigh later specialist reports remain fact-sensitive. Future decisions will further clarify when a GP's continuity of care merits greater weight.
Interaction with statutory amendments
The Tribunal noted that the relevant parts of the Act had been amended since the date of the accident. Pilato applies the law as it stood at the accident date. Questions may arise where benefit-entitlement provisions have changed over time, and claimants may contest retrospective application or the proper statutory benchmark for older accidents.
Use of non-medical evidence (video, home observations)
A video recorded earlier was used in evidence showing the applicant performing activities between 1997 and 2003. Pilato illustrates the utility of contemporaneous functional evidence, but it leaves open the evidentiary weight to be attributed to older recordings relative to current reports of disability.
For practitioners advising claimants or TAC, Pilato highlights the importance of:
Procuring robust specialist and occupational therapy assessments that directly address rehabilitation impact of funded services,
Establishing clear evidence about household contribution capacity and about why household members cannot assist, where that is the case,
Considering time-limited or targeted service proposals to reduce the Tribunal's concern about fostering dependency.
In sum, Pilato v TAC underscores the Tribunal's balancing approach: medical evidence must be assessed for both present incapacity and the likely rehabilitative consequences of funded services; household context matters; and entitlement under s 60 is contingent on reasonableness, not automatic because an injury exists.
Judgment (42 paragraphs)
[1]
Pilato v Transport Accident Commission (General) [2009] VCAT 916 (28 May 2009)
[2]
General List - transport accident - application for payment by respondent of domestic services - whether reasonable in the circumstances - Transport Accident Act1986s 60
[3]
Pilato v Transport Accident Commission (General) [2009] VCAT 916
[4]
Note: These written reasons consist of an edited transcription of reasons given orally at the conclusion of the hearing.
[5]
This is an application to review a decision of the respondent to refuse domestic help to the applicant. The initial decision of the respondent was made on 15 September 2008 and reviewed by the respondent on 27 October 2008. The decision was made in relation to a request by the applicant for domestic services at her home. She says that she wants domestic services twice a month for the purpose of cleaning of showers, toilets, vacuuming and dusting hard to reach areas. She states that she has
[6]
very severe fibromyalgia, depression, pain and tiredness and gets very frustrated knowing that my showers and cupboards and heavy works I cannot do. My son will not help, my husband works long hours, he does the heavy shopping.
[7]
She then states that cleaning showers requires her neck to be at an angle in a small space which causes her neck and shoulder pain.
[8]
The background and circumstances in this matter are that the applicant was involved in a transport accident on 23 October 1995, which is approximately 13½ years ago. The circumstances of the accident were that while her car was stationary, her vehicle was hit in the rear. She initially went to the police station and then she was taken to the Box Hill Hospital where she was observed for a number of hours. After that time she was taken to her general practitioner. She was diagnosed with soft tissue injuries to her neck, back and shoulders.
The applicant has been treated by a number of doctors and indeed was initially paid for loss of earnings and medical treatment but in 1996 the respondent determined that it would no longer pay for treatment.
The applicant previously issued proceedings in this Tribunal where she was seeking a review of a permanent impairment assessment which Member West determined that the applicant has 18% of her impairment, 2% of that related to her neck.
In approximately 2002 or 2003, the applicant was granted a serious injury certificate pursuant to s 93 of the Transport Accident Act1986 (the Act) by Judge Robinson in the County Court.
In relation to the question of domestic services, there has been a considerable amount of evidence which has been tendered before me.
The applicant has relied on a medical report of her general practitioner - Dr Chiew dated 16 March 2009. Dr Chiew in his report states -
[9]
Mrs Pilato accident related injuries are neck, back and chest wall pain since a car accident in 1995.
[10]
Currently Ms Pilato has chronic pain syndrome involving her neck, multiple areas of her chest wall and back, and depression.
[11]
Mrs Pilato can only perform light work like dusting and wiping, cooking and washing dishes. She cannot do mopping, vacuuming, heavy cleaning (like windows and bathrooms), hanging out laundry on the lines, and ironing.
[12]
My opinion is that Mrs Pilato, with pacing strategies and rehabilitation/assistance equipments, can do light gardening and general cleaning in the home except mopping.
[13]
I note that Dr Chiew did not attend for cross-examination but Mr Rawlings, solicitor for the respondent, correctly pointed out that he did not have a chance to cross-examine Mr Chiew. However, an adverse inference should not be drawn because the applicant was appearing for herself and it was very difficult for her to arrange to call doctors. However, Mr Rawlings did say that I should bear in mind that he never had a chance to cross-examine Dr Chiew and I agree with that proposition.
The applicant's case was also supported by Mr Postlethwaite, a clinical psychologist. He gave evidence before me and he stated that he believed that the applicant needed help and that she was suffering severe depression. He was unable to give a full medical history or medical opinion although he tried to give some medical opinion. However, I noted he is not a medical practitioner, he is a clinical psychologist. While he has been to the applicant's home, he had not observed her at her home doing physical activity. He gave the impression when he gave his evidence that the applicant found it difficult to sit still at any particular time and she was clutching her shoulders and her neck with pain. I might add that during the hearing of this case, over the last two days, she has given a similar impression. However, a DVD was shown to me which was taken between 1997 and 2003 which showed the applicant moving freely, driving and at work at the Westfield Shopping Centre, Doncaster. It was difficult to see in that DVD that the applicant had any limitations.
At the time of the accident and before, the applicant was working for her husband in a concrete business doing administration. After the accident, between approximately 1996 and 2003, as I stated, the applicant worked in an administrative capacity, part time for Westfield, who are owners and operators of the Doncaster Shopping Centre.
While she was working she used part of the money she received from the work to pay for a cleaner and I understand the cleaner performed similar duties to what she is asking for in this application. She said she ceased work in 2003 because of her physical problems which problems related to the transport accident. She does not now have a cleaner and she is unable to do work herself, such as cleaning the shower, basin and toilet and vacuuming and, to some extent, dusting the skirting boards herself.
[14]
I believe she (the applicant) is doing really well despite her fibromyalgia & mood disorders & is doing as much as she can despite her limitations. I believe she does need some assistance with heavy tasks but as she shares a household with 2 other adults & as there is an expectation that all adults contribute to the overall running of the household, I do not see that the TAC is liable to fund for assistance with the heavy tasks.
[15]
Ms Mealor did not give any oral evidence before me. Mr Rawlings accepted what the applicant would contend in relation to her report, so it was unnecessary for her to be called.
Ms Mealor assessed the applicant on 30 July 2008 and concluded in her report of 31 July 2008 as follows :
[16]
I feel that Ms Pilato should be able to pace normal domestic tasks throughout the week without risk of exacerbation. Increased purposeful activity is likely to be beneficial and therefore I do not support the provision of services. If services were to be implemented it is highly likely that Ms Pilato will become dependent on these and they would therefore be required ongoing.
[17]
Ms Pilato reported an unwillingness for her husband and son to complete tasks, however, it would seem reasonable that either or both do so for less frequent and heavier tasks such as cleaning windows etc. She reported that her husband believes she could be completing the routine tasks.
[18]
I note that both occupational therapists suggested that the applicant's husband and son should help with the duties around the house. While the applicant did not disagree that they should help, she in fact said they won't and it would follow that her submission was that if they won't help, therefore the TAC should pay for someone to carry out the heavier tasks that she is requesting on one day per fortnight.
However, I refer to the decision of Macnamara DP in Wakim v TAC (unreported AAT 3.6.1996).
At page 6 of that decision, the Deputy President, referring to household duties, which is slightly different from the present, but, in my view, there is no real distinction, stated as follows :
[19]
The fact that this applicant lives in a family home and has to wash the clothes very frequently, derives in no large part from the fact that she is a member of a four person household. It would, in my view, be unreasonable to include those elements on the side of the equation establishing her responsibilities and pay no heed to what might reasonably be expected of the other members of the household in assisting. In my view therefore, whilst in the first example I gave it is unreasonable for the Commission to presume on the charity of others, in an instance such as the present applicant's, the necessity of the services has to be judged in light of the reasonable expectation of assistance from the other members of the family. (underlining supplied).
[20]
Applying that law to the present circumstances, I find that there is a reasonable expectation that both the applicant's husband and her 24 year old son do the tasks that the applicant said are heavy and she finds too difficult. They are members of the household, they are quite capable of doing the tasks and, in my view, it is reasonable to expect that they perform those tasks.
I also heard evidence given before me by Dr Kostos, a rheumatologist, who examined the applicant on 24 April 2009. In his report he stated that on examination, he found that
[21]
Her (the applicant's) neck movements are all restricted with pain in all directions. There is diffuse midline, cervical and bilateral paravertebral tenderness to light touch.
[22]
Shoulder elevation is only possible to 90 degrees with pain on both sides. There are no localising abnormalities but she has generalised tenderness around both shoulder girdles, together with evidence of allodynia.
[23]
All movements whilst sitting and standing are restricted with pain in all directions. However, similar responses are noted with axial compression and stimulated rotation.
[24]
All of her lower limb joints show a full range of movement, but are painful.
[25]
I also note that when Dr Kostos was giving his oral evidence, he said that he only conducted active movement examinations and that if he had conducted passive movement examinations, that is, with the doctor moving the various limbs of the applicant, he may well have achieved a different result. However, in Dr Kostos' opinion, he states as follows :
[26]
It is quite apparent that this woman has a chronic pain syndrome. There are some features which would be consistent with fibromyalgia.
[27]
She claims that her symptoms began from the time of the accident but I doubt very much that this was the case.
[28]
Often in these situations such patients have a long history of pain or other somatic complaints for which a cause isn't found.
[29]
Clearly, this woman's psychiatric status is the most relevant factor in her ongoing problems and obviously you will contact your psychiatrist advisors about this.
[30]
Suffice to say that there clearly isn't any evidence of a physical injury related to the motor vehicle accident. Although she may have some stiffness in her spine, this would be constitutional in nature.
[31]
At a later part of his opinion, Dr Kostos states :
[32]
However on the basis of what I have seen today it is quite clear that this woman is exaggerating her disability and in particular her weakness would not be compatible with being able to stand or undertake any activity such as driving a motor vehicle.
[33]
Therefore I do believe she has adopted an invalid role.
[34]
As a result the provision of Home Help services will further contribute to her perception that she is injured. Therefore it is important that her treating doctors reinforce the fact that there isn't any specific injury. You will already note that she understands that she has "central nervous system damage" which clearly is not the impression that this woman should have.
[35]
There certainly does appear to be an unwillingness of the claimant to embrace Ms Mealor's suggestions and I note that Ms Mealor suggests that her client is likely to become dependent on any services provided.
[36]
Therefore, in my opinion, the TAC should not accept liability for the provision of domestic services for any physical injury that has occurred as result of the motor vehicle accident.
[37]
Mr Rawlings tendered a report dated 15 May 2009 of Dr Ebringer also a rheumatologist, although he was not called to be cross-examined. The report was in relation to an examination which he performed on the applicant on 4 May 2009. In the examination findings, Dr Ebinger said :
[38]
General examination was normal. .... Musculoskeletal examination demonstrated a normal range of passive movements in the cervical and thoracolumbar spines and again a normal range of passive movements at the shoulders, elbow, wrists and peripheral joints of her hands. There was a similar normal straight leg raising and normal power, tone and reflexes in the lower limbs. There was full range of movements at the hips, knees, ankles and feet with no evidence of active arthritis or synovitis.
[39]
I note, at this particular point, Dr Ebringer confirmed what Dr Kostos suspected and that is that if he had performed passive movement, there would have been a full range of movement.
However, Dr Ebringer does find that the applicant has -
[40]
chronic pain syndrome with fibromyalgia. This has been associated with severe depression for which she apparently needs ongoing appropriate treatment. ....
[41]
From the history given and the clinical findings, it is clear that this woman has significant disability to cope with her daily living and I believe that she has a permanent disability in relation to her chronic pain syndrome and her psychiatric state.
[42]
Summing up these matters, it does appear to me that both of the occupational therapists and Dr Kostos are firmly of the view that it will be detrimental to this lady to have the domestic services she asks for.
I was very impressed with Ms Mentrom who expressed a view similar to Dr Kostos and I was also impressed with the report of Ms Mealor. I was also impressed with Dr Kostos who gave evidence and presented the report. It seemed to me that their views were sincere and correct. As opposed to that in relation to the general practitioner, Dr Chiew, I certainly did not hear him give evidence but his expertise was nowhere near that of Dr Kostos. Further, it is clear, that Dr Chiew may well have developed some sympathy for the applicant being her general practitioner and seeing her so often. I also have some doubt in regard to Dr Ebringer's conclusion and where there is a conflict of evidence between the two occupational therapists and Dr Kostos on the one hand, and Dr Chiew and Dr Ebringer on the other, as well as Mr Postlethwaite, I accept the evidence of Dr Kostos and the two occupational therapists. They genuinely had the applicant's interests at heart and it would be detrimental for her to have the domestic assistance that she is seeking.
Therefore, I now find that it is detrimental for the applicant to have the domestic assistance that she is seeking, it necessarily follows that it would be unreasonable for that service to be supplied to her.
In these circumstances, the decision of the respondent will be affirmed.
Parties
Applicant/Plaintiff:
Pilato
Respondent/Defendant:
Transport Accident Commission
AI Analysis
Outcomerespondent
Disposition:
Decision of respondent affirmed.
I also note that the applicant is married with three adult children, two of whom do not live at home. A son who is 24 years old, and works with his father in the concreting business, lives at home as does her husband.
Mrs Pilato said that she receives little help with domestic tasks from her husband and son because they are both tired when they come home from work. She also indicated that her son does not do very much around the house and refuses to give her very much assistance except when he places the dishes in the dishwashing machine. She said that her husband also does very little work around the house but he will occasionally help with the heavier duties but he certainly could not be relied upon.
Mr Rawlings, who appeared for the respondent, made it clear that s 60(2)(c) and (d) of the Act as it existed at the time of the accident enabled the applicant can claim domestic assistance for herself up to and including the present time. However, domestic assistance can only be claimed for other members of the family for up to five years. That is a correct summation of the law as it existed at the time of the accident and the law which must guide me. I note that the relevant part of the Act has since been amended.
The applicant has been assessed by two occupational therapists - Ms Mealor and Ms Mintrom. Ms Mintrom gave evidence before me. She assessed the applicant on 30 April 2009 and concluded in her report dated 10 May 2009 that -