Wilby and Comcare

[2003] AATA 651

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 739

REASONS 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,…