West and Comcare

[2004] AATA 364

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 364

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/150

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RAYMOND JOHN WEST

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date7 April 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Compensation – travel expenses for physiotherapy treatment – not compensable unless length of journey exceeds 50 kilometres.

Safety Rehabilitation and Compensation Act 1988 – s16(7)

Re Allen and Comcare (2001) AATA 379

REASONS FOR DECISION

7 April 2004 Ms A F Cunningham (Part-time Member)           

1.       The applicant has sought the review of a decision of a review officer of the Commonwealth Department of Veterans’ Affairs dated 12 September 2003, refusing the applicant’s claim for reimbursement of travel expenses to attend physiotherapy sessions.

2. Both parties agreed to the Tribunal determining the application on the basis of the written material before it. This included the T documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, the respondent’s statement of issues and facts and contentions and the applicant’s request for reconsideration dated 26 November 2003.

3. A payment of compensation for travel expenses is provided for in s16 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”). Liability to pay compensation for travelling expenses was denied on the basis that each return trip to the applicant’s physiotherapist is less than the 50 km specified in subsection 16(7) of the SRC Act.

4.      On 24 October 1988 liability was admitted for an injury to the applicant’s lower back sustained in a fall on 19 January 1988.  On 12 February 2002, the condition was changed to syrinx of cervical and upper thoracic spinal cord.   Liability was extended on 6 March 2003 to include unpredictable bladder and bowel function.

5.      As part of the medical treatment for the compensable injury the applicant undergoes physiotherapy approximately 3 times per week.   The total distance travelled by the applicant each week is 139.2km.    This equates to 46.4km for each round trip.

6.      It was the applicant’s evidence that his specialist Dr B Triffitt had stated:

“He requires ongoing physical and occupational therapy in order to maintain strength, flexibility, improved co-ordination and balance.   As such he needs to continue to attend the comprehensive stretching programs prescribed by his physiotherapist.”

7.      The applicant travels from Midway Point to the Savoy Baths in Hobart to attend Ms Kellie Wilkie, his physiotherapist.   The applicant maintains that he has the right to choose his own physiotherapist.    He has received good results from her treatment and intends  to continue to consult Ms Wilkie until such time as she ceases practising.

8. Sub-section 16(7) of the SRC Act provides the following:

“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) exceeds 50 kilometres.”

9.      Although the applicant’s total weekly travel is 139.2km, the above sub-section authorises compensation for travel costs where a journey exceeds 50km.   The legislation clearly refers to each specific journey, not the total distance travelled for the 3 trips the applicant makes each week.   On the applicant’s evidence, each journey is less than 50 kms being 46.4 kms.

10.     The Act affords the Tribunal no discretion  to authorise compensatory payment in such circumstances.    A similar decision was reached by the Tribunal in Re Allen and Comcare (2001) AATA 379. There the applicant had sought compensation for a total claim of 6 trips to consult with her doctor. The Tribunal held that:

“The legislation refers to compensation for each specific journey, not the total of the six trips.   As each journey was less than 50 kilometres, Comcare is not liable for the travel in this case.”   

11.     For the above reasons, the Tribunal affirms the decision under review.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  Matter decided on the papers.
Date of Decision  7 April 2004