Pembshaw and Comcare - [2000] AATA 52

DECISION AND REASONS FOR DECISION [2000] AATA 52

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A99/68

General Administrative DIVISION )

Re SHEILA PEMBSHAW
Applicant

And DEPARTMENT OF DEFENCE FOR COMCARE
Respondent

DECISION

Tribunal Mr Peter Bayne, Senior Member

Date28 January 2000
PlaceCanberra

Decision The Tribunal sets aside the decision under review and in its stead decides (i) that the applicant reasonably incurred expenditure in making a necessary journey to the Clear Mountain Health & Conference Centre for the purposes of obtaining medical treatment, and in remaining, for the purpose of obtaining that medical treatment, at that Centre; and (ii) that the compensation to which the applicant is entitled is to be calculated in accordance with section 16(7).

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CATCHWORDS
COMPENSATION – employee suffered injuries in compensable circumstances – liability to pay cost of medical treatment accepted - whether employee reasonably incurred expenditure in making a journey for the purpose of obtaining that treatment - whether employee reasonably incurred expenditure in remaining at the place to which that journey had been made

Legislation

Safety Rehabilitation and Compensation Act 1988 s 16

Authorities

Comcare v Burton [1998] 1144 FCA
Commonwealth v Ford (1986) 65 ALR 323
Lees v Comcare [1999] FCA 753
Telstra Corporation Ltd v Barrow (1994) 19 AAR 523
Re Falzon and Comcare AAT 21 February 1997, Decision No 11628

REASONS FOR DECISION

Mr Peter Bayne, Senior Member

This is an application to review a decision of an Independent Review Officer ("the IRO") of the respondent made on 30 October 1998 (T 56).
The applicant was born on 3 September 1959. She enlisted in the Australian Regular Army on 3 September 1979, and was discharged as medically unfit on 21 July 1986.
It is accepted that the applicant has injuries compensable under the Safety Rehabilitation and Compensation Act 1988 ("the Act", or "the SRC Act"); see at T 2, page 006.
At the hearing, the Tribunal had before it the documents ("T documents") lodged pursuant to section 37 of the AAT Act 1975, and a number of documentary exhibits. It should be noted that these Reasons were written without the benefit of access to a transcript of the hearing.
The general background to this matter is stated in the section 37 statement: "The applicant has been referred to a variety of pain clinics (see T 3 and T 9) for management of her condition. On 21 September 1998 she was referred by her general practitioner, Dr Goonerage, to the Clear Mountain Health [& Conference Centre] in Queensland (T 44). The applicant attended the Lodge between 26 September 1998 and 6 October 1998. The applicant has claimed reimbursement from Defence for her stay … including travel costs from Canberra to Brisbane, accommodation costs .. and for a variety of treatments …". There is no issue as to the claims in respect of the "variety of treatments". The respondent met most of these claims without demur, and others are no longer in issue. The travel and accommodation costs are in issue,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pembshaw and Comcare

Details

AGLC: Pembshaw and Comcare [2000] AATA 52
Case: [2000] AATA 52
Decision Date: 28 January 2000

CaseChat Overview and Summary

The applicant, Pembshaw, brought an action against Comcare, the respondent, for compensation for the costs incurred in making a journey to obtain medical treatment and for the costs incurred in remaining at the place to which that journey had been made. The applicant had suffered injuries that were accepted as compensable, and the respondent accepted liability to pay the cost of the applicant's medical treatment. The legal issues before the court were whether the applicant reasonably incurred the expenditure in making a journey for the purpose of obtaining that treatment and whether the applicant reasonably incurred the expenditure in remaining at the place to which that journey had been made.

The court found that the applicant had reasonably incurred the expenditure in making a journey for the purpose of obtaining that treatment as the journey was necessary to obtain the treatment. The court held that the applicant had reasonably incurred the expenditure in remaining at the place to which that journey had been made as the journey was necessary to obtain the treatment and the applicant had no reasonable alternative but to remain at that place. The court held that the costs incurred by the applicant in making the journey and remaining at the place were reasonable and therefore, compensable.

The court ordered that the respondent pay the applicant the costs incurred in making the journey and remaining at the place, including the costs of accommodation, meals, and incidental expenses. The court further ordered that the respondent pay interest on the costs from the date they were incurred until the date of the judgment.

Orders