Wilby and Comcare - [2001] AATA 739

DECISION AND REASONS FOR DECISION [2001] AATA 739

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/143

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ANDREW WILBY
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date24 August 2001
PlaceBrisbane

Decision      The Tribunal decides: (a)    the decision under review is set aside; (b)          the matter is remitted to the respondent to give effect to the Tribunal's reasons for decision; and (c) the respondent pay the applicant's costs as agreed or as taxed by a Deputy Registrar of the Tribunal at Brisbane in accordance with the Practice Direction.
  .(Sgd) K L Beddoe
  Senior Member

Decision No 739/2001
CATCHWORDS
COMPENSATION – quadriplegic - whether payment of expenses away from home compensable – whether medical treatment – whether nursing care

Safety Rehabilitation and Compensation Act 1988 s 4, 16, 29, 37, 39

REASONS FOR DECISION

24 August 2001 Mr K L Beddoe (Senior Member)

The applicant seeks review of the respondent's decision of 15 December 2000 which affirmed a decision of 14 September 2000 refusing:
(a)payment of expenses incurred by the applicant in relation to accommodation, meals and drinks for carers while the applicant is away from home; and
(b)payment of expenses incurred by applicant for himself for accommodation and travel expenses on trips away from home.
Section 16(1) of the Safety Rehabilitation and Compensation Act 1988 ("the Act") provides that where an employee suffers an injury the respondent is liable to pay for medical treatment that was reasonable for the employee to obtain in the circumstances, such amount as the respondent determines is appropriate to that medical treatment.
"Medical treatment" is defined in section 4(1) of the Act to mean a comprehensive list of various forms of treatment including:
"(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in hospital or otherwise."

Section 29(3) of the Act provides for payment for attendant care services that are reasonably required subject to a monetary cap of $308.10 per week or the amount per week incurred whichever is the less.
Section 29(4) sets out matters to be taken into account in determining the attendant care services that are reasonably required in a particular case. However the sub-section expressly does not limit the respondent to consideration of the following matters:
"(a)the nature of the employee's injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;
(b)the extent to which any medical service or nursing care received by the employee provides for his or her essential and regular personal care;
(c)the extent to which it is reasonable to meet any wish by the employee to live outside an institution;
(d)the extent to which attendant care services are necessary to enable the employee to undertake or continue employment;
(e)any assessment made in relation to the rehabilitation of the employee;
(f)the extent to which a relative of the employee might reasonably be expected to provide attendant care services."

Where an amount…

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 Wilby and Comcare

Details

AGLC: Wilby and Comcare [2001] AATA 739
Case: [2001] AATA 739
Decision Date: 24 August 2001

CaseChat Overview and Summary

The case of Wilby and Comcare involved the applicant, Mr. Wilby, who sought compensation from Comcare for various expenses he incurred while away from home, arguing that these were part of his rehabilitation program. The matter was heard by the Federal Circuit Court of Australia, which had to determine whether certain expenses were compensable under the Safety Rehabilitation and Compensation Act 1988. The applicant argued that his travel and accommodation expenses, as well as the additional cost of a motel room with disabled facilities, should be covered as part of his rehabilitation and medical treatment.

The court was tasked with interpreting the relevant sections of the Act, particularly sections 37 and 39, to ascertain if they covered the expenses claimed by Mr. Wilby. Section 37 pertains to expenses incurred in relation to alterations, while section 39 covers expenses incurred in relation to nursing care, household services, and rehabilitation. The court had to determine if the expenses in question fell under these categories or if they were personal expenditures.

In its reasoning, the court held that the travel and accommodation expenses incurred by Mr. Wilby while away from home were personal expenditures and not compensable under section 37. It concluded that the additional cost of a motel room with disabled facilities did not fall under section 39. However, the court found that the cost of the carer accompanying Mr. Wilby was properly characterised as nursing care and medical treatment under section 16 of the Act. Additionally, the extra expenses incurred by Mr. Wilby when his carers accompanied him away from home were considered as attendant care services under section 29(3) of the Act, which includes reasonable costs such as meals, beverages, travel, and admission prices.

The court also addressed the role of Ms. Guthrie, the applicant's sister-in-law who had been his carer for a decade. The court found that her role as a carer did not extend to family social functions, where she attended as a family member, and therefore, no attendant allowance was payable for such occasions under section 30(4)(f).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant's away from home activities including travel are not to be construed as part of his rehabilitation program and the expenses do not come with section 37 of the Act. Nor is the claimed additional cost of a motel room with disabled facilities within the terms of section 39 of the Act.Consideration 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. 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. 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. 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. 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. I have considered the position of Ms Guthrie who has been one of the applicant's carers for the past decade but who became the applicant's sister-in-law this year. Section 29(4) requires that consideration be given to the criteria set out in the sub-section when determining the attendant care services that are reasonably required in the particular case. In that regard Ms Guthrie said she is not the applicant's carer at family social functions where she attends as a member of the family. That, in my view, is a correct dichotomy between her professional functions as a carer and her position in the family. It would be unreasonable, in my view, to suggest that because she attends a family function she does so as the applicant's carer. Whether she provides any care at such a function would, in my view, be of no consequence but in any event would not justify a claim for payment of attendant allowance (s 30(4)(f)).