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 is payable under sub-section 29(3) the payment may be made to the employee or the person who provided the attendant care services in accordance with sub-section 29(6).
At the hearing Mr Jones appeared for the applicant and Mr Clark appeared for the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents. No other documents were put into evidence. Oral evidence was given by the applicant and one of his carers – Judy Guthrie.
The applicant suffered very serious spinal damage and burns in an accident on 30 June 1989 while engaged in his employment in the Australian Army. There is no dispute and there can be no doubt that the respondent is liable under the Act in relation to the injuries sustained.
Document T28 is a copy of a determination dated 23 August 1999 whereby the respondent determined that the Department of Defence was liable to pay compensation for home care nursing services for 24 hours per day. The decision was made under section 16 of the Act and that is expressly stated in the notification to the applicant.
The applicant requires constant care and attention except when he is asleep and even then there is a requirement for a carer to be on hand and in particular for him to be turned in bed at least once during the night and to attend to other incidents such as incontinence. The applicant gave detailed evidence about the demands he makes on his carers but it is not necessary that I set that out here. The applicant impressed me as a frank witness and I accept the totality of his evidence, and as corroborating evidence to the evidence given by the carer.
All of the applicant's day to day activities are dependent to some degree on assistance by a carer. In particular I am satisfied and find that it is not feasible for the applicant to leave his home unless he is accompanied by a carer. He needs assistance at each stage of a journey and cannot drive his motor vehicle.
One aspect of the applicant's claim arises out of straight forward day to day activity of going to the bank and the shops. In the course of such a trip the applicant may stop at a café etc for the purpose of having something to eat or drink. In doing so the applicant clearly requires the assistance of the carer. I accept that because of his injuries he is unable to go into a café on his own. In particular he requires assistance with drinking, eating and toileting. It is therefore reasonable for the carer to also partake of refreshment and it is the expense in relation to the carer which the applicant pays but seeks to have it paid by the respondent.
From time to time the applicant travels interstate to visit relatives in Melbourne or for other purposes. If he travels by air the airlines insist on a carer travelling with him to provide the necessary care. If he travels by road it means that the applicant can take his specialised equipment with him.
Irrespective of the mode of travel the applicant must, of necessity, stay at motels with disabled persons facilities rather than stay with family or friends who do not have such facilities.
Irrespective of his particular activity the applicant must have toilet assistance at all times because he has no bowel control.
The carer who gave evidence recently became the applicant's sister-in-law because she married the applicant's brother. However she has been one of the applicant's carers for the past decade. She lives in the same street as the applicant and provides his carer services over weekends. She is a qualified aged care nurse.
Three other carers provide the applicant's care Monday to Friday. The carers are paid by an organisation trading as "Paraquad" which provides the services of the carers and is paid for those services by the respondent. The carers are paid by Parquad on a flat hourly rate of pay basis. It was not suggested that Paraquad makes provision for out of pocket expenses to be reimbursed to its employees.
The applicant also attends sporting events. To do so he needs the constant assistance of a carer including the time he is at the event. As the witness said, the carers are the applicant's arms and legs.
She also said that when the applicant attends family events she is not the carer on that occasion. Another carer looks after Andrew at such events.
Document T10 is a detailed report by an occupational therapist at CRS Australia. The report is dated 17 October 1998 and includes the following:
"Andrew requires the assistance of his carer to undertake the following tasks of daily living:

assist Andrew out of bed
assist with dressing
assist with personal care and grooming
assist with showering
undertake all transfers ie bed<-> chair, chair<-> toilet etc
drive Andrew's Flash Cab
prepare daily meals and assists Andrew to eat meals
get Andrew drinks throughout the day
empty catheter bags when required
bowel management/enemas
provide general supervisory care throughout the day as required."

That report is consistent with the evidence before me as to the day to day regime explained by the applicant and the carer before the Tribunal. I understand the level of assistance for the first four tasks is such as to make the various tasks possible. None of those tasks can, in any sense, be performed by the applicant without a high level of assistance. The remaining tasks are tasks performed by the carer because they cannot be performed by the applicant.
The Applicant's Contentions
The constant attention provided to the applicant by the four carers is in the nature of nursing care and therefore comes within the meaning of medical treatment as defined in section 4(1) of the Act. Additional expenses incurred by the applicant are but an extension of that medical treatment. The additional expenses are incurred by the applicant because of his injuries for which liability has been accepted.
In the alternative the additional expenses relate to attendant care services coming within the terms of sub-section 29(4) of the Act.
Also section 39 provides for compensation for alterations to the employees place of residence and place of work where they are reasonably required alterations. The section should be read inclusively to include the cost of accessing suitably modified premises while travelling.
Criteria to be considered are set out in sub-section 39(2) and should be read so as to be include cost of hiring disabled accommodation while away from home.
The Respondent's Contentions
The words "nursing care" take their meaning from the rest of paragraph (h) in the definition of "medical treatment" so as to be restricted to nursing care associated or connected with the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise.
The respondent submits that the tasks undertaken by the carers are to be characterised as "attendant care services" and not as nursing care and therefore not "medical treatment" as defined so that there is not liability under section 16 of the Act.
The expenditure incurred away from the applicant's residence is not medical treatment as defined even if it is accepted that the care at his residence is accepted as medical treatment. No medical purpose attaches to those outside the home activities.
The costs associated with travel and accommodation cannot be characterised as services of a domestic nature within the definition of household services and therefore within the scope of section 29 the Act. Nor can these expenses, as they apply to the applicant, be characterised as personal care expenses.
While it is conceded that the respondent has admitted liability for home care nursing 24 hours per day, it does not concede that the applicant requires 24 hours nursing care.
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)).
The decision under review will be set aside and the matter remitted to the respondent to reconsider giving effect to the Tribunal's reasons for decision.
There will be the usual order for costs in the applicant's favour.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .....................................................................................
  Associate
Date/s of Hearing  6 August 2001
Date of Decision  24 August 2001
For the Applicant  Mr Jones, Representative
For the Respondent                 Mr Clark, Counsel