JEFFREY CHALFONT and COMCARE
[2009] AATA 540
•21 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 540
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5921
GENERAL ADMINISTRATIVE DIVISION ) Re JEFFREY CHALFONT Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date21 July 2009
PlaceBrisbane (heard in Ballina)
Decision The Tribunal affirms the decision under review.
...............Signed...............
Deputy President
CATCHWORDS
WORKER’S COMPENSATION - reimbursement for travel expenses to and from medical appointments – usual travel under legislative minimum for compensation – evidence that some journeys longer due to need to return home not accepted – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16(6) and 16(7)
REASONS FOR DECISION
21 July 2009 Deputy President P E Hack SC Introduction
1.The applicant, Mr Jeffrey Chalfont, suffers from a number of medical conditions for which the respondent, Comcare, has accepted that it is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth). The present controversy arises out of Mr Chalfont’s need to travel to receive medical treatment for those conditions and his entitlement to compensation for travelling expenses.
2.Two issues arise:
(a)Did Mr Chalfont, in fact, travel for distances in excess of 50 kilometres on the occasions identified by him? and,
(b)If he did, were those instances a single journey or two separate journeys?
Background
3.Much of the background in uncontroversial. I do not understand what follows to be in issue. Comcare has accepted liability to pay compensation to Mr Chalfont in accordance with the Act for a left knee injury, diverticula of the colon and a left shoulder injury. In connection with that latter condition Mr Chalfont received physiotherapy at the Princess Alexandra Hospital on some 18 occasions between 7 December 2004 and 18 March 2005. It is accepted that the distance from Mr Chalfont’s then residence at Underwood to the Princess Alexandra Hospital and return was 38 kilometres. Additionally, Mr Chalfont saw Dr Ken Cutbush, an orthopaedic surgeon, at his rooms on Wickham Terrace on two occasions in October 2004 and May 2005. Again, it is accepted that the distance from Mr Chalfont’s then residence at Underwood to Wickham Terrace and return was 44 kilometres.
4.In May 2005 Mr Chalfont lodged a claim with Comcare for reimbursement of these travelling expenses on the basis that he had travelled 38 kilometres by private car on each of the journeys to the Princess Alexandra Hospital and 44 kilometres on each of the visits to Wickham Terrace. Comcare rejected the claim on 17 June 2005 on the footing that none of the journeys exceeded 50 kilometres and thus was not compensable.
5.Mr Chalfont had left shoulder surgery in May 2005 and further rehabilitative treatment between May 2005 and February 2006 which again involved him making a claim in February 2006 for compensation for travelling expenses for several journeys of less than 50 kilometres. That claim was rejected by a determination made by Comcare on 18 March 2008, again on the basis that no individual journey had exceeded 50 kilometres. Mr Chalfont requested a reconsideration of this determination. In August 2008 the February 2008 claim was paid by Comcare notwithstanding that the journeys had not exceeded 50 kilometres.
6.On 29 October 2008, as a result of an “own motion” re-consideration, Comcare determined to revoke the decision made on 17 June 2005 and to accept liability to pay Mr Chalfont’s travel expenses incurred whilst “attending treatment at the Princess Alexandria [sic] Hospital and Dr Cuthbert’s [sic] practice from 7 December 2004 to 18 March 2005.” Then, on 3 December 2008, Comcare made a further determination by which it revoked the 29 October 2008 determination and determined to deny liability for the travelling expenses incurred between 7 December 2004 and 18 March 2005.
7.It is that further determination of 3 December 2008 which is the subject matter of these proceedings.
The legislation
8.The entitlement to compensation for travelling expenses is dealt with in s 16(6) and (7) of the Act in these terms:
“(6)Subject to subsection (7), if:
(a)compensation in respect of the cost of medical treatment is payable; and
(b)the employee reasonably incurs expenditure in doing either or both of the following:
(i) making a necessary journey for the purpose of obtaining that medical treatment;
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c)in respect of the journey—of an amount worked out using the formula:
where:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, under this subsection in respect of journeys to which this subsection applies.
numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey).(d)in respect of the employee remaining for the purpose of obtaining the treatment—of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7)Comcare is not liable to pay compensation under subsection (6) unless:
(a)the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b)if the journey made by the employee involved the use of public transport or ambulance services—the employee’s injury reasonably required the use of such transport or services regardless of the distance involved.”
9.Two matters warrant emphasis. First, the exclusion of liability to pay compensation unless the reasonable length of the journey exceeded 50 kilometres. It is on this basis that Mr Chalfont’s claims have been rejected to date. The second in the determination of the kilometres travelled being “the whole kilometres Comcare determines to have been the reasonable length of [the] journey as it was necessary for the employee to make.” This expression is relevant to the second basis on which Comcare seeks to have its decision affirmed.
10.Sub-section 16(8) of the Act lists, non-exhaustively, the matters that Comcare is to consider in determining questions under s 16(6) and (7). It is unnecessary in the present case to detail those matters.
The issues
11.Mr Chalfont accepts that s 16(7) of the Act operates to prevent him from recovering compensation where the length of the total journey did not exceed 50 kilometres although understandably he is perplexed by Comcare’s various changes of heart on the issue. He pursues his claim in respect of only six trips – those on 10 December 2004, 20 December 2004, 22 December 2004, 1 February 2005, 21 February 2005 and 18 March 2005. On each of these occasions, he says, his medical condition required him to return home to change his attire before resuming the journey to the hospital. The result was, says Mr Chalfont, that on each of these occasions the journey exceeded 50 kilometres and thus he is entitled to compensation for these travelling expenses. Additionally, Mr Chalfont says that there were other occasions when his journey was necessarily lengthened when he was obliged to detour to locate suitable toilet facilities. He does not now pursue any claim in respect of these occasions.
12.For its part, Comcare submits that I ought not be satisfied by the evidence that Mr Chalfont’s claim ought be accepted. It is, so it is said, a claim late made, and developed over time such that I ought reject it as a reconstruction after the event.
13.Moreover, says Comcare, even were I to accept Mr Chalfont’s account, a journey of the type described by him is not a single journey it is two separate journeys separated by the need to return home.
Consideration
14.I am unable to accept Mr Chalfont’s accounts of these longer journeys. My reasons for coming to that view are best demonstrated by reference to the history of this claim. It was first articulated in Mr Chalfont’s letter to Comcare of 16 May 2005. That letter is notable for the absence of any detail about the need to either return home after starting the journey or to deviate from the journey. The letter simply asserts:
“On these occasions, I travelled between my residence and the Princess Alexandra Hospital – return journey 38 kms.”
As has been observed, Mr Chalfont’s claim was rejected on 17 June 2005 on the basis that his journeys had not exceeded 50 kilometres. He was entitled to seek a re-consideration of this determination but did not do so.
15.The question of the length of journeys next appears to have arisen on 25 March 2008 when Mr Chalfont responded to correspondence from Comcare regarding his second travelling expenses claim. Neither that letter nor a subsequent letter of 18 April 2008 make mention of the need to lengthen the journey. I appreciate that these letters concern a different claim however it would seem to me that if Mr Chalfont’s need to return home arises as frequently as he says it does then some of these claims ought to have involved distances similarly inflated by such needs. The only mention made in either of additional distances is that travel can be “affected by directional traffic flow and limited availability of parking” thus requiring greater distances of travel.
16.Mr Chalfont’s application to the Tribunal lodged on 12 December 2008 is equally devoid of any mention of the claim, now made, that distances in excess of 50 kilometres were travelled on some occasions. Following a telephone conference in February 2009 Mr Chalfont wrote to the Tribunal on 9 February 2009. That letter enclosed a schedule, apparently provided by the Princess Alexandra Hospital, setting out Mr Chalfont’s physiotherapy appointments and indicating further that it had been found necessary to re-schedule six of them. Mr Chalfont attributed the need for re-scheduling to “the onset of chronic diarrhoea” but did not otherwise suggest any need for additional travel. The whole thrust of his correspondence, as appears from the final substantive paragraph, is that private motor vehicle transport was the only transport available.
17.Thereafter the matter was the subject of a neutral evaluation undertaken by Senior Member Carstairs. That evaluation, which is in evidence before me with the consent of the parties, notes that “Mr Chalfont agrees that no individual return trip was of a distance greater than 50 kms.” Senior Member Carstairs then deals with, but does not accept, the construction arguments then being advanced by Mr Chalfont.
18.It seems to me to be significant that the first mention of an extended journey appears following this evaluation in Mr Chalfont’s letter to the Tribunal of 12 April 2009. That letter enclosed the schedule of appointments and, by reference to the occasions of re-scheduled appointments, said:
“As I recall, there were two (2) occasions when we had almost reached the Princes [sic] Alexandria [sic] Hospital when it became necessary for my daughter to return me to my residence so that I could shower and change my clothing due to my bowel dysfunction. On many other occasions, we had to divert from our usual most direct route on the Pacific Motorway to locate public toilets on either the forward or return journeys. My wife and daughter insist there were occasions when such diversions occurred on both journeys.
…
I can reasonably estimate that on each occasion there was a need to divert from the route on the Pacific Motorway each journey, to undertake and complete physiotherapy treatments or a consultation with Dr Cutbush, would have been no less that fifty (50) kms other than the two (2) occasions when it was necessary for me to return to my residence from Annerley, only one (1) km from Princes [sic] Alexandria [sic] Hospital. On these occasions the return distance would have been no less than seventy (70) kms.”
19.Subsequently, in his letter of 22 May 2009, Mr Chalfont referred to six occasions when it had been necessary for his daughter to take him back home to shower and change whilst travelling to physiotherapy appointments. In his Statement of Facts and Contentions lodged on 4 June 2009 Mr Chalfont puts his case thus:
“The reasonable and necessary return distance journeys to obtain medical treatment for an accepted left shoulder injury on 10, 20, 22 December 2004; 1 and 21 February 2005 and 18 March 2005 exceeded 50 kilometres;
· my residence to Princess Alexandra Hospital (PA) via Annerley to residence then continue to PA Hospital … 69 kms (twice);
· my residence to PA Hospital via Tarragindi to residence then continue to PA Hospital … 59 kms (twice);
· my residence to PA Hospital via Mt. Gravatt to residence then continue to PA Hospital … 52 kms (twice).”
Mr Chalfont’s evidence at the hearing was along similar lines to that set out in his Statement of Facts and Contentions.
20.It will suffice for me to say that the late formulation of the claim and the manner in which it has matured over time leave me with no confidence in Mr Chalfont’s evidence on these matters. The fact that the claim is articulated by reference to the schedule of re-scheduled appointments may demonstrate that the claim is most likely the product of reconstruction however I need not go that far. It is enough to say that I am unable to accept Mr Chalfont’s evidence that he has a genuine recall of these matters. That is so particularly because I regard the evidence that Mr Chalfont now gives as inherently improbable having regard to the way in which the claim has been advanced over time.
21.In the circumstances it is unnecessary to deal with the alternative argument advanced by Comcare.
Conclusion
22.It follows that I would affirm the decision under review.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .................Signed......................................
Eleanor O’Gorman, AssociateDate of Hearing 13 July 2009
Date of Decision 21 July 2009
Applicant Self-represented
Counsel for the Respondent Ms E Ford
Solicitors for the Respondent Australian Government Solicitor
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