Wilby and Comcare
[2003] AATA 651
•11 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 651
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/977
GENERAL ADMINISTRATIVE DIVISION )
Re ANDREW WILBY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date11 July 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) RG Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION –– severe spinal injuries and burns incurred during employment – liability accepted - benefits and entitlements – attendant care costs - costs of taking carers on overseas holiday
Safety, Rehabilitation and Compensation Act 1988 ss 4, 13, 29
Brennan v Comcare (1994) 50 FCR 556
Haberfield v Department of Veterans’ Affairs as delegate for Comcare [2002] FCA 1579
Re Wilby and Comcare [2001] AATA 739REASONS FOR DECISION
11 July 2003 Mr RG Kenny, Member 1. On 3 August 1989, Comcare (“the respondent”) accepted responsibility under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for spinal injuries and burns to the arms and legs of Andrew Wilby (“the applicant”) which were incurred by him whilst he was employed by the Australian Army.
2. On 5 September 2002, a delegate of the respondent determined that, in accordance with section 29 of the Act, attendant care costs could only be reimbursed to the applicant at a maximum rate of $317.65 per week (see T10). That decision was affirmed by a further delegate of the respondent on 20 September 2002 (T12). On 13 November 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (“the Tribunal”) (see T1).
3. The applicant attended the hearing and was represented by Mr B Winship of counsel. The respondent was represented by Ms E Ford of counsel. In evidence were the following:
§exhibit 1 the T documents (T1-T12) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975;
§exhibit 2 a letter, dated 3 February 2003, from Rachael Eigel, co-ordinator of the Paraplegic & Quadriplegic Association of Queensland; and
§exhibit 3 a copy of an e-mail message, dated 2 September 2002, from the applicant to the respondent.
Issues and Legislation
4. The applicant suffered serious spinal damage and burns in an accident that occurred on 30 June 1989 and it is not disputed that the respondent is liable under the Act in relation to those injuries. In the e-mail message sent by the applicant to the respondent (Exhibit 3), he advised he intended taking a holiday which would involve him in travelling from Australia to South Africa. He requested that the respondent assume responsibility for the payment of the cost associated with his being accompanied by two carers who would fly with him and stay with him in South Africa for the planned duration of the holiday of two weeks. The applicant purported to bring his claim for that assistance within the terms of subsection 29(3) of the Act which reads:
“(3)Where, as a result of an injury to an employee, the employee obtains attendant care services that he or she reasonably requires, Comcare is liable to pay compensation of:
(a) $200.00 per week; or
(b)an amount per week equal to the amount per week paid or payable to the employee for those services;
whichever is less.”
5. The issue for the Tribunal is whether or not the costs associated with two carers accompanying the applicant on an overseas trip fall within the terms of that provision.
Applicant’s Evidence
6. The applicant said he had previously made a request for payment of the kind that he is seeking on this occasion and was reimbursed by the respondent in the amount of some $2,000 with no issue being taken by the respondent in relation to those expenses. On that occasion, he went on a cruise for ten days and was accompanied by two carers. His brother and his brother’s wife accompanied him on the trip and his brother’s wife was one of the carers. He said that two carers were necessary because it was not possible for them to work for 24 hours per day and so they needed to alternate from one day to the next. He said that he paid his own fares and those of one carer and, because his brother and brother’s wife came along for the holiday, they paid their own way.
7. The applicant said that he had planned to go to South Africa for a holiday on the same basis but with two independent carers. In his e-mail message (exhibit 1), he said that he was planning to go to South Africa and to do so by flying from Brisbane to Sydney, then to Perth and then, after staying the night in Perth, flying from Perth to South Africa the next day. After two weeks in South Africa, he planned to return to Perth, stay overnight and then return to Brisbane via Sydney. He said he was only able to sit in one position for a certain period and that, therefore, for the trips between Perth and South Africa, he needed to travel in business class where he would be much more comfortable. He said that only one carer needed to accompany him in business class and that the other could fly economy class. In addition to the travel costs of the carers, he requested that he be reimbursed the additional costs of his own business class fares over and above that of the economy air fare.
8. The applicant said that, because of the decision of the respondent, he had been required to cancel that particular holiday plan.
Applicant’s Contentions
9. Mr Winship submitted that costs which would be incurred by the applicant in respect of his carers’ travelling expenses, including air fares, accommodation and meals comprised “attendant care services”, as that term is defined in subsection 4(1) of the Act, and that, therefore, these were amounts that the respondent was liable to pay to the applicant. He referred to the indexation provision which is found in section 13 of the Act and to the definitions of “relevant amount” and “relevant year” in subsection 4(1) of the Act. He also referred to subsection 13(4) of the Act as the means of providing what the amount is for the purposes of subsection 29(3) of the Act.
10. In relation to the expenses, he submitted that it was the right of every Australian citizen to take a holiday and that this was also a right which should be enjoyed by and exercised by the applicant. He submitted that the only way this could be done was with the assistance of two carers and that, therefore, the cost associated with their attendance upon him constituted essential and regular personal care to him during such holidays.
11. He referred to the second reading speech delivered in relation to the introduction of section 29 of the Act (House of Representatives, Hansard, 27 April 1998, 2193) where reference was made, in relation to the meaning of “attendant care services”, to “feeding, bathing, supply of medication or other services of a personal nature”.. He submitted that the final words of that phrase were sufficiently broad to cover the nature of the costs associated with the carers’ travel arrangements and travelling expenses.
12. In relation to the amount of compensation payable under subsection 29(3) of the Act, Mr Winship referred to the amount given in the provision of $200 and to its present indexed amount of $317.65 as representing a rate at which the applicant may be paid rather than an absolute amount. He submitted that, once expenses have been categorised under the definition of “attendant care services”, the respondent was obliged to make payment of the full amount of those expenses over a period of time and at the rate of no more than the indexed sum. In that sense, he submitted that the provision did not require the payment to be made in respect of a week when the expenses were incurred.
13. Finally, Mr Winship submitted that, in the event there was ambiguity in the meaning of the definition of “attendant care services” in subsection 4(1) or of the amount payable under subsection 29(3) of the Act, such ambiguity should be resolved in favour of the applicant on the basis that the Act was intended to be beneficial legislation which should be construed liberally. For that proposition, he relied upon the observations of Burchett J in Brennan v Comcare (1994) 50 FCR 556 at 561.
Respondent’s Contentions
14. Ms Ford submitted that the purpose of section 13 of the Act, in relation to indexation, was to ensure that the amount referred to in subsection 29(3) of the Act was annually updated. She also submitted that the interpretation upon which the decision was made by the respondent involved no discrimination against the applicant because all injured employees were equally treated in accordance with the terms of subsection 29(3) of the Act.
15. In relation to the expenses in this case, Ms Ford submitted that the definition of “attendant care services” in subsection 4(1) of the Act did not extend to the holiday expenses of the carers associated with their travelling, food and accommodation. In that respect, she submitted that these were not services but expenses and that, even if they could be characterised as services, they were not services for attendant care but services for travel, food and accommodation.
16. Also, in relation to the definition in subsection 4(1) of the Act, she submitted that the costs were not required for the essential and regular personal care of the applicant. She referred to the decision of Sackville J in Haberfield v Department of Veterans’ Affairs as Delegate for Comcare [2002] FCA 1579 as supporting that proposition.
17. In relation to the amount of compensation, Ms Ford submitted that there was no ambiguity in the terms of subsection 29(3) of the Act in that it provided for the lesser of two amounts to be paid to a person in the applicant’s position in a given week. This was either the indexed statutory amount or an amount less than that and which was equal to the amount actually paid or payable by the person during the week in question. She submitted that the legislation did not enable an averaging process to be adopted so that the statutory amount became a rate of payment until a total larger amount was paid. In summary, she submitted that the provision was framed to provide compensation for regular costs, considered on a weekly basis, associated with obtaining attendant care services for essential personal care not for “one off” or rare luxury items such as holidays.
Consideration
18. The respondent has accepted liability for compensation of the applicant for his injuries and section 16 of the Act enables compensation to be paid in respect of expenses for medical treatment while section 29 of the Act enables compensation to be paid in respect of expenses for attendant care services. The terms “medical treatment” and “attendant care services” are defined in section 4 of the Act as follows:
“attendant care services, in relation to an employee, means services (other than household services, medical or surgical services or nursing care) that are required for the essential and regular personal care of the employee.
medical treatment means:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or
(c) dental treatment by, or under the supervision of, a legally qualified dentist; or
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or
(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or
(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or
(g) treatment and maintenance as a patient at a hospital; or
(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or
(i) any other form of treatment that is prescribed for the purposes of this definition.”
19. A matter involving the applicant came before the Tribunal on 24 August 2001: see Re Wilby and Comcare [2001] AATA 739. There, the Tribunal referred to both “medical treatment” and “attendant care services” and distinguished them from personal choice expenditure. The Tribunal said:
“32. Amounts incurred by the applicant for travel and accommodation expenses while travelling away from home have the character of personal expenditure. They are amounts paid for goods and services at the discretion of the applicant and cannot, in my view, be properly characterised as for nursing care, for attendant care services, household services, rehabilitation expenses or expenses incurred in relation to alterations. The essential character of those expenses is personal expenditure resulting from personal choice decisions. I am satisfied the Act does not provide for re-imbursement of such expenditure. I have taken into account the fact that sometimes there will be expenditure that might not have been incurred either at all or only as to some lesser amount except for the applicant’s compensable condition.
33. It is that compensable condition which causes the applicant to incur additional expenditure over and above his personal choice expenditure. That expenditure relates, in the main, to additional expenses incurred because he must be accompanied at all relevant times by a carer. The cost of attendance of the carer is properly characterised as medical treatment because it is essentially of the character of nursing care. The carer is there to provide nursing care. The fact that the carer also provides company is, in my view, only incidental to the provision of the nursing care.
34. The additional expenses of the carer are, in my view, caused by the fact of the applicant requiring the nursing care and are not to be characterised as arising from the fact of the carer being an accompanying person.
35. The amounts paid to Paraquad for the carers should be treated, in toto, as nursing care and therefore medical treatment within the terms of section 16 of the Act.
36. Extra expenses reasonably incurred by the applicant when carers accompany him away from home should be accepted as being for attendant care services coming within section 29(3) of the Act. Such additional expenses may include cost of meals and beverages reasonably incurred, additional travel expenses over and above the applicant’s personal choice expenditure, reasonably incurred, and admission prices reasonably incurred.”
20. The Tribunal characterised the expenses such as those that the applicant would incur for his own travel, accommodation and food as personal expenditure resulting from personal choice decisions for which the Act does not provide reimbursement. I agree with that characterisation and also with the Tribunal’s observation that this might involve expenditure that might not have been incurred either at all or only as to some lesser amount except for the applicant’s compensable condition. That description will embrace any additional costs associated with the applicant flying in business class rather than in economy class and I am satisfied that none of those costs, including any such additional costs, is compensable under the Act.
21. In relation to the carers in the earlier case involving the applicant, the Tribunal, noted that these were provided by an organisation named Paraquad who made payment to them on a flat hourly rate of pay basis and who were reimbursed for this by the applicant. In its decision, the Tribunal characterised those expenses as medical treatment and, therefore, determined that these would fall within the terms of section 16 of the Act.
22. In relation to additional expenses incurred by the applicant for the carers in that earlier case, the Tribunal accepted that these would constitute “attendant care services” in accordance with subsection 29(3) of the Act and reference was made specifically to the cost of meals and beverages, additional travel expenses and admission prices. In each case, these had to be reasonably incurred.
23. In Haberfield v Department of Veterans’ Affairs as Delegate for Comcare (above), which was determined after the Tribunal decision in Wilby (above), Sackville J said the following in relation to the term “personal care” as it is used in the definition of “attendant care services”.
“24. The expression ‘personal care’ is not defined, but would seem to be an ordinary English expression. It is a composite phrase which conveys the notion of catering for the basic needs of an individual which must be met if that individual is to function adequately within the limits of his or her physical ability and mental capacity. Without being exhaustive, the phrase embraces such tasks as bathing, grooming, eating, toileting, achieving mobility, taking medication and complying with prescribed exercise or therapy programs (some of these tasks, of course, may be outside the statutory definition because of the specific exclusions). This approach to the expression ‘personal care’ is consistent with the Explanatory Memorandum to the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988, which identified ‘attendant care services’ as including
‘bathing, grooming, assistance with eating and drinking, preparing and caring for artificial aids and appliances and helping with exercise’.
25. Not all services that are desirable, or even necessary for the personal care of an employee are within the definition. The qualifying words in the definition make it clear that the services must be required for the employee’s essential and regular personal care. This is an important qualification.”
24. As I understand it, it is in order to provide those essential and regular aspects of personal care, as identified by Sackville J, that the applicant’s carers were to accompany him. Clearly, unless they, in fact, accompany him then they are unable to perform those services. Nevertheless, it is only with the provision of those services that subsection 29(3) of the Act is concerned. It provides that, where the employee obtains attendant care services that he reasonably requires, Comcare is liable to pay compensation of an amount “for those services”.. As I read the provision, it is the kind of services referred to by Sackville J to which those words apply and, again as I understand it, these are the kinds of services for which the carer is engaged by whoever the independent provider is, who then, in turn, is reimbursed by the applicant. I am satisfied that the approach suggested by the Tribunal in Re Wilby and Comcare (supra) in relation to the cost of meals, beverages and additional travel is not consistent with the interpretation of the term attendant care services adopted in Haberfield.
25. I accept the submission of Ms Ford that expenses relating to travel cost, accommodation and meals do not fall within the definition of “attendant care services” in subsection 4(1) of the Act and, therefore, are not compensable in accordance with the terms of subsection 29(3) of the Act.
26. I have noted the submission of Mr Winship concerning the right of the applicant to take a holiday and accept that this is correct. However, I also accept the characterisation of various kinds of expenditure by the Tribunal in Re Wilby and Comcare (supra) and consider those to be personal choice expenses which are not compensable. I have also noted his submission in respect of the need for a generous construction to be applied in the case of ambiguity. However, the interpretation by Sackville J of the term “personal care” as it is used in the definition of “attendant care services” raises no ambiguity.
27. In relation to the quantum of compensation, I read subsection 29(3) of the Act as making provision for paying compensation on a weekly basis and as not leaving open the interpretation as submitted by Mr Winship. I am satisfied that the amount referred to in subsection 29(3) of the Act is not a rate of payment by which some larger sum can be reduced periodically. The provision requires the respondent to pay compensation of the indexed amount per week or, alternatively, where some lesser amount is expended per week, that lesser amount. I am satisfied that the focus of the provision is on weekly expenditure and that it does not provide for any averaging process to be employed. Again, I have noted the submission of Mr Winship in respect of the need for a generous interpretation to be adopted in the case of ambiguity but consider that the provision is clear and unambiguous in its requirement to base payments on expenses incurred in a particular week.
Decision
28. The Tribunal affirms the decision under review.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 23 June 2003
Date of Decision 11 July 2003
Counsel for the Applicant Mr B Winship
Solicitor for the Applicant Messrs Rockliffs
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Messrs Dibbs Barker Gosling