Brian Germain and Repatriation Commission

[2015] AATA 473

[2015] AATA 473

Division	VETERANS' APPEALS DIVISION
File Number	2014/5561
Re	Brian Germain
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	23 June 2015
Date of written reasons	1 July 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – claim for travel expenses for partner – whether partner “participated” in the veteran’s treatment – decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) s 110 and 80

Veterans’ Entitlements Regulations 1986 (Cth) reg 9

REASONS FOR DECISION

1 July 2015

INTRODUCTION

1. Brian Germain is a veteran who receives disability pension at the Special Rate in respect of his ischaemic heart disease.

2. On 22 February 2014, Mr Germain was transported from the Bowen Public Hospital to the Mater Private Hospital in Townsville by the Royal Flying Doctor Service for treatment of his heart condition. He was discharged on 7 March 2014.

3. Mr Germain’s wife travelled to Townsville by road on 23 February, and stayed in Townsville that night and the following night, before returning home to Bowen. She returned on 7 March to take Mr Germain home following his discharge.

4. After his return home, Mr Germain lodged a claim for Mrs Germain’s travelling expenses for both trips. In respect of the earlier trip, two nights’ accommodation were included in the claim.[1] In his letter which accompanied the claim form, Mr Germain explained that the transfer to Townsville “necessitated the need for my wife/carer to travel to Townsville so that medicines, clothing etc. could be brought to the Mater Hospital.” He went on to say that it was also necessary for his wife “to be informed by the cardiologist looking after me as to what was required to treat the condition and the necessary level of ongoing treatment.”[2]

   [1] Exhibit 1. T Documents, T3, f  23(a).

   [2] Exhibit 1, T Documents, T1, f 6.

5. The Commission accepted the claim for travel on 7 March and granted a meal allowance, but rejected the claim for the earlier trip.[3] Mr Germain sought a review of that decision, but a delegate of the Commission affirmed it.[4] Mr Germain now seeks a review of that decision.

   [3] Exhibit 1, T Documents, T4, f 24.

   [4] Exhibit 1, T Documents, T2, ff 19-21.

   THE LEGISLATIVE FRAMEWORK

6. Before identifying and considering the issues, it is timely to reflect on the key legislative provisions.

7. Section 110 of the Veterans’ Entitlements Act 1986 (Cth) (“Act”) deals with the travelling expenses of veterans and associated persons. Subsection (1) relevantly provides that where a veteran travels with the Commission’s approval for the purpose of obtaining treatment, he or she is, subject to the section and prescribed conditions, entitled to be paid such travelling expenses in connection with the travel as are prescribed.

8. Subsection (1A) provides:

   If:

   a)    a veteran travels, with the approval of the Commission under subsection (1), for the purpose of obtaining treatment; and

   b)    the treatment is of a kind prescribed in an instrument under subsection (6); and

   c)    the veteran’s partner travels for the purpose of participating in that treatment;

   the veteran’s partner is, subject to this section and to such conditions as are prescribed by the regulations, entitled to be paid such travelling expenses, in connection with that travel, as are prescribed by the regulations.

9. “Treatment” is relevantly defined in s 80(1) as meaning:

   …treatment provided, or action taken, with a view to:

   a)restoring a person to, or maintaining a person in, physical or mental health;

   b)alleviating a person’s suffering; or

   c)ensuring a person’s social well-being;

   and, without limiting the generality of the foregoing, includes:

   d)the provision of accommodation, medical procedures, nursing care, social or domestic assistance or transport;

   e)the supply, renewal, maintenance and repair of artificial replacements, and surgical and other aids and appliances; and

   f)the provision of diagnostic and counselling services;

   for the purposes of, or in connection with, any such treatment or action.

10. The Veterans’ Entitlements Regulations 1986 (Cth) (“Regulations”) prescribe the conditions relating to travelling expenses under s 110 of the Act. Accommodation and meal expenses are dealt with in regulation 9(12) to (15), while regulation 9(16) to (18) deals with attendant entitlements. “Attendant” is relevantly defined in regulation 9(1) as a person who is authorised by the Commission under s 110 of the Act to accompany a veteran as his or her attendant.

    ISSUE FOR TRIBUNAL

11. The issue I am to determine is whether Mrs Germain is entitled to travelling expenses (including accommodation and meals) for the trip on 23 and 24 February.

12. Mr Germain contends that because his wife was responding to an urgent request by the hospital for his original medication packages, she was “participating” in his treatment, and so qualified under s 110(1A)(c) of the Act. He also contended that the provision of information to Mr Germain’s treating doctors and receiving their advice and recommendations meant that his wife was participating in his treatment.

13. For the Commission, it was submitted that as Mrs Germain did not accompany Mr Germain on that trip, she was not an “attendant” for the purposes of the Regulations. It is disputed that, in bringing the medications to the hospital, she was “participating” in his treatment, as she was doing so simply in order that they could be correctly identified; the provision of information to the treating doctors does not, it is said, constitute treatment. Nor does the receipt of information from those doctors.

    CONSIDERATION

14. It is clear to me that, as Mrs Germain did not accompany her husband on the Royal Flying Doctor flight from Bowen to Townsville, she could not be considered an “attendant” for the purposes of the Regulations. That is to be contrasted with the trip on 7 March when she accompanied Mr Germain on his trip home following his discharge; the claim in respect of that trip was properly accepted.

15. Mr Germain’s argument was based on s 110(1A) of the Act. While there was no dispute that paragraph (a) of that section was satisfied, in that Mr Germain was travelling for the purposes of obtaining treatment, the operation of paragraph (b), and as a consequence paragraph (c), was more problematic. That is because paragraph (b) requires the treatment in question to be “of a kind prescribed in an instrument under subsection (6)”. That subsection says that the Commission may, by legislative instrument, prescribe kinds of treatment for the purposes of paragraph (1A)(b). Neither Mr Germain nor Mr Ponnuthurai for the Commission were aware of any kinds of treatment being so prescribed and further inquiries by Mr Ponnuthurai failed to locate any such legislative instruments having been made. That absence of prescription presents difficulties as regards paragraph (c). If there is no kind of treatment prescribed for the purposes of paragraph (b), it naturally follows that there is no such treatment for the veteran’s partner to participate in, and so enliven the operation of the subsection.

16. Even if that were not the case, and subsection (1A) were operative, I would still have some difficulty with the notion that, in simply bringing her husband’s current medications to the hospital for identification, Mrs Germain was somehow “participating” in his treatment. While I accept the dictionary definition of “participation’” that Mr Germain offered, namely, “to be involved” and “to take part”, one must not lose sight of the subject to which that word refers – treatment. Section 80(1) of the Act makes it clear that that word means “treatment provided, or action taken” with one or more of the objectives listed in paragraphs (a), (b) and (c) in mind. The Macquarie Dictionary attributes to the word “treatment” the following meanings: “the act or manner of treating”; “management in the application of medicine, surgery, etc.”  Similarly, the Oxford English Dictionary assigns this meaning: “management in the application of remedies; medical or surgical application or service”. What that means is that any participation in question has to be with the treating doctors in the actual management of the condition through the use of surgery or the administration of medicines, with one or more of the stated aims or objectives in mind. In simply bringing the existing medications to the hospital, Mrs Germain was not taking part in or involving herself in the actual management of her husband’s condition; she played no role in the exercise of the professional judgment as to what steps to take, nor did she have any role in the administration of drugs, the surgical procedures performed or the undertaking of any other remedial action.  As Mr Ponnuthurai, submitted, all she provided was information to allow those professional judgments to be exercised and actions taken by the treating doctors. Nor do I consider that receiving feedback and information from the treating doctors as to future care amounts to “participation” in treatment.

17. For those reasons, I am unable to accept Mr Germain’s submissions. I therefore consider that the decision under review should be affirmed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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Associate

Dated 1 July 2015

Date of hearing	23 June 2015
Applicant	In person
Advocate for the Respondent	Mr C Ponnuthurai