Peter Carson and Comcare
[2014] AATA 699
•25 September 2014
[2014] AATA 699
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6318
Re
Peter Carson
APPLICANT
And
Comcare
RESPONDENT
Decision
Tribunal Senior Member N A Manetta
Date 25 September 2014 Place Adelaide The decision under review is affirmed.
...............[ Sgd] ..................................
Senior Member N A Manetta
Catchwords
COMPENSATION – Travel expenses for treatment of severe dermatitis – Treatment undertaken over a course of consecutive days – Each day’s attendance to be separately evaluated for its reasonableness – No single round trip exceeds 50 kilometres – no aggregation of trips permissible – decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988, s 16
Cases
Re Horan and Comcare [1990] AATA 278; 21 ALD 621
Re Allen and Comcare [2001] AATA 379
Re Green and Comcare [2003] AATA 81
Re Purser and Comcare [1993] AATA 351Re West and Comcare [2004] AATA 364, 80 ALD 776
REASONS FOR DECISION
Senior Member N A Manetta
25 September 2014
This is an application by Dr Peter Carson for a review of a decision taken by Comcare, the respondent, to refuse to compensate him for travel to and from medical appointments in accordance with s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Dr Carson represented himself at the hearing; Ms Walker appeared for Comcare.
principal issue in contention
The principal issue before me is whether Comcare was correct in refusing to aggregate the kilometres travelled by Dr Carson by private car in his various attendances at medical appointments. Had they been so aggregated, he would have exceeded the 50-kilometre threshold specified under the Act. This threshold must be exceeded before a travel allowance is payable in respect of journeys made by private car. If each such trip is to have the threshold applied to it, however, Dr Carson is not eligible to receive anything from Comcare by way of a travel allowance: no single round trip exceeds 50 kilometres.
background facts
The background facts that are relevant to the application are agreed between the parties and may be summarised as follows. Dr Carson was formerly employed as a research scientist with the Defence Science Technology Organisation, a long-range weapons institute. He suffered a compensable injury at work, which led to a severe dermatitis, manifesting itself periodically in rashes. Cold weather in particular aggravates his condition. From time to time, he must attend day clinics for treatment (normally the Royal Adelaide Hospital). A course of treatment will typically take many days. The first days of the course last from 8:00am to 3:00pm; towards the end of the course a stay may last from 8:00am to 1:00pm. Treatment on each day typically involves the application of topical ointments and the wrapping of Dr Carson’s body in heated towels. At the conclusion of each day’s treatment, Dr Carson returns home. In addition, he sees his dermatologist, Dr Grieve, three or four times a year. No single round trip he makes exceeds 50 kilometres.
legislation
Although section 16 is long, it is helpful to quote it in full:
16Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4)An amount of compensation payable by Comcare under subsection (1) is payable:
(a)if the employee has paid the cost of the medical treatment—to, or in accordance with the directions of, the employee; or
(b)if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c)in any other case—to the person to whom the cost is payable.
(5)Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first‑mentioned person.
(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.
(8)The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a)the place or places where appropriate medical treatment was available to the employee;
(b)the means of transport available to the employee for the journey;
(c)the route or routes by which the employee could have travelled; and
(d)the accommodation available to the employee.
(9)Where:
(a)an employee suffers an injury;
(b)a person has reasonably incurred expenditure in connection with the transportation of the employee, or, if the employee has died, of his or her body, from the place where the injury was sustained to a hospital or similar place, or to a mortuary; and
(c)the employee, or the legal personal representative of the employee, does not make a claim for compensation in respect of that expenditure;
Comcare is liable to pay compensation to the person who incurred the expenditure of an amount equal to the amount of that expenditure.
ANALYSIS OF SECTION 16
The structure of s 16 is as follows. Subsection (1) establishes a liability in Comcare to pay for the cost of an injured employee’s medical treatment “being treatment that it was reasonable for the employee to obtain in the circumstances”. Subsection (6)(b) imposes an obligation on Comcare to meet the reasonable expenditure of an employee who makes a necessary journey for the purpose of obtaining “that medical treatment”;[1] that is, the medical treatment in respect of which Comcare is liable to pay compensation under subs (1). A per-kilometre compensation rate is to be specified in a subordinate legislative instrument promulgated by the responsible Minister.
[1] Emphasis supplied.
Subsection (7) is important because it relieves Comcare of any liability to pay compensation for travel under subs (6)(b) unless the reasonable length of “such a journey as it was necessary for the employee to make … exceeded 50 kilometres”. This is a reference to the journey made for the purposes of obtaining compensable medical treatment.
Dr Carson submits that “the journey”[2] he was required to make exceeds 50 kilometres in respect of his hospital attendances and in respect of his specialist appointments with Dr Grieve. The trips to and from the Royal Adelaide Hospital for a typical course of treatment lasting eight days easily exceed the 50-kilometre threshold.
[2] Or “journeys”, reading the singular as embracing the plural.
Ms Walker for Comcare submits that Comcare must apply the 50-kilometre threshold to each daily return trip Dr Carson makes to hospital or to see a specialist. In Dr Carson’s case, although an eight-day course of treatment at hospital may involve in total more than 200 kilometres of travel, no single day’s travel to and from hospital exceeds 50 kilometres. Accordingly, in her submission, no liability to pay compensation arises because of subs (7)(a).
Ms Walker’s submission does imply two things. First, although the Act is beneficial legislation and, in accordance with normal principles of statutory construction, should be construed liberally,[3] the Tribunal is required to read the threshold as having been intended to apply to each single trip. Secondly, it follows on her argument that a person having to make a round trip by car of, say, 45 kilometres day after day will receive no allowance, but an injured employee having to make, say, one single trip of 51 kilometres is intended to be compensated. On the face of matters, that result appears somewhat illogical and unfair. The latter person receives more compensation although less deserving of it than the former, all things being equal. Again, a person might have to make a single round trip of 200 kilometres to obtain treatment, but the same number of kilometres divided over, say, 5 trips (40 kilometres per trip) will result in no compensation being payable. Again, there seems little logic in an approach that sees an identical number of travelled kilometres compensated differently.
[3] See, for example, The Laws of Australia, (Thomson Reuters), Vol 25, para [25.1.3210].
On the other hand, if an aggregation of kilometres is permissible, the 50-kilometre threshold would operate rather infrequently to exclude the right to compensation; yet the statutory limitation in subs (7) was intended, presumably, to have a meaningful practical application. A person who suffers an injury will often have to make a number of trips to attend medical appointments. A total distance of 50 kilometres is quickly travelled when multiple round trips are aggregated.
I think the preferable reading of the section – and certainly the one that better accords with the ordinary and grammatical meaning – is that the threshold was intended to be applied to each individual round trip.
Comcare is liable under subs (1) to pay only for the cost of medical treatment that it was reasonable for the employee to obtain in the circumstances. Under subs (6)(b), it is only a necessary journey for the purpose of obtaining compensable medical treatment that attracts an allowance. The primary decision that must be made by Comcare is whether each separate attendance by an injured employee at a place of treatment is reasonably justified. It may be that a particular day’s attendance is justified, while another day’s is not.
In Dr Carson’s case, for the purposes of s 16 of the Act, each day’s attendance at the hospital has to be assessed for its reasonableness under subs (1). That is, each day’s treatment is a separate event, and the question under s 16(1) is whether the treatment on that day is reasonable in the circumstances. If not, no compensation is payable in respect of that day’s treatment under subs (1), and it must also follow that no compensation under subs (6) is payable in respect of the journey to obtain that day’s treatment irrespective of the kilometres travelled. Once it is accepted that each day’s treatment has to be separately evaluated for its reasonableness under subs (1), it follows, in my opinion, that subs (6)(b) has to be applied, and reapplied, to each day’s journey. A differential approach is implicit in s 16(1) and this flows through to subs (6) and the application of the 50-kilometre threshold in subs (7) in my opinion. I think that is the preferable reading of s 16 notwithstanding the apparently arbitrary results that might arise and to which I have alluded above. Although I do not find the result entirely satisfactory, I should note that the plain and grammatical reading does not, in my opinion, lead to such an absurd result that I believe I should depart from it.
I should add that my conclusion is consistent with decisions of the Tribunal, even if I have not found the question as straightforward as others have. I refer here to Re Horan and Comcare [1990] AATA 278; 21 ALD 621 at 4; Re Allen and Comcare [2001] AATA 379; Re Green and Comcare [2003] AATA 81; Re Purser and Comcare [1993] AATA 351; and Re West and Comcare [2004] AATA 364, 80 ALD 776. I should also say that I was not referred to any decisions favouring the contrary approach.
I note also that in none of these authorities did the question of a course of treatment administered over consecutive days arise. I am not satisfied, however, that this is a relevant point of distinction. Consultations separated by a number of days, weeks or even months might be said to belong to a single “course” of treatment in some circumstances. The fact that Dr Carson’s consultations at the hospital occurred over a period of consecutive days does not make a critical difference. In my opinion, as I have said, s 16(1) is predicated on an assumption that each occasion of treatment must be separately assessed for its reasonableness.
DECISION
In all the circumstances, and not without some sympathy for Dr Carson, I affirm the decision under review.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta ........ [Sgd] .....................................
Administrative Assistant
Dated 25 September 2014
Date of hearing 10 June 2014 Applicant In person Counsel for the Respondent Ms G Walker Solicitors for the Respondent Australian Government Solicitor
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