Wilby v Comcare
[2003] FCA 1381
•28 NOVEMBER 2003
FEDERAL COURT OF AUSTRALIA
Wilby v Comcare [2003] FCA 1381
WORKERS’ COMPENSATION – Commonwealth employees – member of armed services – compensation for attendant care services – whether services required for essential and regular personal care – whether costs associated with carers’ travel are compensable.
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Re Wilby [2001] AATA 739 referred to
Haberfield v Department of Veterans Affairs (2002) 121 FCR 233 consideredANDREW WILBY V COMCARE
N 941 OF 2003
BEAUMONT ACJ
28 NOVEMBER 2003
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 941 OF 2003
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
ANDREW WILBY
APPLICANTAND:
COMCARE
RESPONDENTJUDGE:
BEAUMONT ACJ
DATE OF ORDER:
28 NOVEMBER 2003
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.There be no order for costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 941 OF 2003
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
ANDREW WILBY
APPLICANTAND:
COMCARE
RESPONDENT
JUDGE:
BEAUMONT ACJ
DATE:
28 NOVEMBER 2003
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BEAUMONT ACJ:
INTRODUCTION
This is an appeal brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) by Mr Wilby, who is a quadriplegic, having suffered serious spinal injuries and burns to his arms and legs on 30 June 1989 whilst serving in the Australian Army. On 3 August 1989, Military Compensation accepted liability to pay statutory compensation. The ‘appeal’ is brought as an application in the Court’s original jurisdiction, on a question of law only, from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) affirming a decision of Comcare (Department of Veterans’ Affairs) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’).
In order to understand the present matter, it is necessary to refer to Comcare’s decisions and then to the Tribunal’s reasons, so far as presently relevant.
COMCARE’S FIRST DECISION
Comcare’s first decision was evidenced by a letter to Mr Wilby, dated 5 September 2002, materially as follows:
The Delegate noted that Mr Wilby was ‘planning a holiday to South Africa ... [and was] seeking financial support in meeting the cost of taking two carers with [him]’.
(Mr Wilby raised another issue, which appears to be no longer relevant.)
With respect to the ‘Attendant Care Costs’ issue, the Delegate said:
‘[In] the AAT decision, Wilby and Comcare (2001) ... Mr K L Beddoe (Senior Member) declared that “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”.
In accordance with Section 29 ... attendant care costs (airfares, accommodation, meals, admission costs, etc.) can only be reimbursed at a maximum rate of $317.65 per week. Any amounts above this statutory maximum will not be payable under the [Act].
This means that ... the amount of compensation payable for each individual week is the lesser of the maximum amount payable under section 29 or the amount of the additional expenses incurred by or on behalf of the carer in that week ... . As an example, if airline tickets and accommodation were pre-purchased for the carer/s at a cost of several thousand dollars and made as one payment, there would only be an entitlement to a maximum reimbursement of $317.65 against the cost of airfares and accommodation, which was incurred in the week in which this payment was made.’
COMCARE’S SECOND DECISION
Mr Wilby having requested reconsideration, another Delegate wrote to Mr Wilby by letter dated 20 September 2002, stating:
‘In your previous AAT decision, it was accepted that extra expenses reasonably incurred by you when carers accompany you away from home, should be accepted as being for attendant care services coming within Section 29(3) of the Act.
Section 29(3) of the Act, states:
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 by the employee for those services;
whichever is less
There is no provision under Section 29(3) to allow for a weekly payment of more than the maximum amount, which is currently $317.65 per week. It is clear from this Section that the amount payable is for expenses incurred per week. It can not be converted into a yearly allowance, and it does not make provision for the accumulation of savings when the maximum costs have not been incurred to be offset against periods when more than the maximum costs have been incurred.’
THE PROCEEDINGS IN THE TRIBUNAL
In his opening, counsel then appearing for Mr Wilby stated that the issue for the Tribunal was ‘simply’ the interpretation, in law, of the words contained in s 29(3).
In his evidence in chief, Mr Wilby said that he had recently been on a ten day cruise, taking two ‘attendant carers’ with him. He paid for one ‘attendant carer’. The other was his brother-in-law. He claimed approximately $2,000 for the cruise, airfare, meals and accommodation and was reimbursed by the Department. (As will be seen, Comcare has at all times accepted that it is liable to compensate for the cost of twenty-four hour nursing care. However, as will appear, ‘attendant carers’ have functions which differ from nurses.)
Mr Wilby then said that he proposed to visit South Africa, but the Department had indicated that it would pay $317.65 per week (being the ‘indexed’ figure at the relevant rate, formerly specified in s 29(3)(a) as $200.00) for attendant carers’ expenses.
In his final submission, counsel for Mr Wilby argued that ‘every individual in our society [has] the right to take a holiday ...’ and that, for this purpose, two attendant carers are ‘essential’ for a quadriplegic. Counsel argued that, although s 29(3) ‘talks about an amount ... we are not talking here ... about a fixed amount ... [that is as at July 2002 of] ... $317.65 per week ... but ... an extrapolate[d] ... amount ... of $16,517.80 per year.’
In her submission, counsel for Comcare argued, inter alia, that ‘the 24 hour care provided to [Mr Wilby] is paid as nursing care under [s] 16. That is not in issue. What is in issue are the travelling expenses associated with taking those carers along on a holiday, and [Mr Wilby] is seeking to obtain those expenses under s 29(3)’. She argued that the travelling costs of carers are not ‘services’ within s 29(3) – they may be transport services, but they are not ‘attendant care services’.
THE TRIBUNAL’S REASONS
The Tribunal noted that Mr Wilby ‘purported to bring his claim for ... assistance within ... [s] 29(3) ... . The issue ... is whether ... the costs associated with two carers accompanying [Mr Wilby] on any overseas trip fall within ... [s 29(3])’.
The Tribunal referred first to s 16 of the Act, providing compensation in respect of medical expenses (etc.).
Section 16(1) provides:
‘(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.’
By s 4(1), ‘medical treatment’ is defined to mean, inter alia –
‘(h)nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; ... .’
The Tribunal next noted that the phrase ‘attendant care services’ enacted in s 29(3) was defined in s 4(1) to mean –
‘... 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.’
The Tribunal noted that in Re Wilby [2001] AATA 739, the Tribunal (differently constituted) had held first, that ‘medical treatment’ and ‘attendant care services’ should be distinguished from personal choice expenditure; and that travel and accommodation expenses away from home have the character of such (non-compensable) expenditure. Secondly, that the compensable condition caused the employee to incur additional expenditure over and above his personal choice expenditure; that expenditure related, in the main, to additional expenses incurred because (as a quadriplegic) Mr Wilby must be at all times accompanied by a carer; and that the cost of attendance of the carer is properly characterised as medical treatment because it is essentially of the character of nursing care, and is not to be characterised as arising from the fact of being an accompanying person. Thirdly, ‘extra expenses’ incurred by an employee when carers accompany him away from home ‘should be accepted as being for attendant care services coming within [s] 29(3)’. The present Tribunal agreed with the characterisation in Re Wilby of expenses for travel, accommodation and food ‘as personal expenditure resulting from personal choice decisions for which the Act does not provide reimbursement’.
The Tribunal noted that after Re Wilby was decided, this Court, in Haberfield v Department of Veterans Affairs (2002) 121 FCR 233 construed the term ‘personal care’, where used in the statutory definition of ‘attendant care services’. Sackville J said:
‘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 (Cth), 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.’
In affirming the decision under review, the Tribunal said:
‘24.... [I]t 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 [s] 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 any amount “for those services”. ... [I]t is the kind of services referred to by Sackville J to which those words apply and ... 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 ... in Re Wilby ... 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 [Comcare] ... that expenses relating to travel cost, accommodation and meals do not fall within the definition of “attendant care services” ... and, therefore, are not compensable in accordance with the terms of [s] 29(3) of the Act.
26.I have noted the submission [for Mr Wilby] 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 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.’
Turning to the quantum issue, the Tribunal held that s 29(3) provided for compensation on a weekly basis only, so that no ‘averaging process [could] be employed’.
MR WILBY’S QUESTIONS OF LAW FOR THIS COURT AND HIS GROUNDS OF APPEAL
By his notice of appeal, Mr Wilby raises two questions of law for this Court:
First, did the Tribunal err in law when determining that expenses relating to travel cost, accommodation and meals do not fall within the definition of ‘attendant care services’ in s 4(1) and therefore, are not compensable in accordance with the terms of s 29(3) of the Act?
Secondly, whether the amount referred to in s 29(3) is not a rate of payment by which some larger sum can be reduced periodically?
Mr Wilby’s grounds of appeal are then stated as follows:
‘The Tribunal erred in law in being satisfied that the approach suggested by the Tribunal in Re: Wilby ... 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 ... and in being satisfied that the focus of the provision in [s] 29(3) of the Act is on weekly expenditure that does not provide for any averaging process to be employed.’
CONSIDERATION
(a) The legislative scheme
Although most of the material provisions of the Act have already been cited, it is convenient to outline the material legislative scheme, including s 29(3) itself, as follows.
Compensation is provided for by Part II of the Act (ss 14 – 33).
By s14(1) it is provided that, subject to Part II, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in (inter alia) incapacity for work, or impairment. (As mentioned, Comcare has accepted statutory liability here.)
Section 16 provides for ‘Compensation in respect of medical expenses etc.’. As has been stated, by s 16(1) it is provided that Comcare is liable to pay compensation of such amount as Comcare determines is appropriate, in respect of the cost of medical treatment reasonably obtained in relation to the injury.
By s 16(6) and (7) Comcare is liable to pay compensation to the employee in respect of, inter alia, expenditure reasonably incurred by the employee in making a necessary journey for the purpose of obtaining medical treatment where compensation in respect thereof is payable.
‘Medical treatment’, as mentioned, is defined in s 4(1). It means (inter alia) ‘nursing care’.
Injuries resulting in incapacity for work are provided for in Division 3 of Part II (ss 19 – 23). By s 19(2), it is provided that, subject to Part II, Comcare is liable to pay to the employee in respect of the injury, for each week that is a ‘maximum rate compensation week’ during which the employee is incapacitated, an amount of compensation worked out using the formula then specified.
‘Household and attendant care services’ are provided for by Division 5 (s 29) of Part II.
Section 29(3) provides, as has been seen, that Comcare is liable to pay compensation of the lesser of $200 (or other indexed amount) per week, or an amount per week equal to the amount per week, paid or payable by the employee for those services where, as a result of an injury, the employee obtains reasonably required ‘attendant care services’. Those services are defined by s 4(1) to mean services that are ‘required for the essential and regular personal care of the employee’, but exclude first, ‘household services’ (themselves defined as services of a domestic nature (including cooking, house cleaning, laundry and gardening) required for the proper running and maintenance of the employee’s household). Secondly, medical and surgical services, as well as nursing care, are excluded.
Section 29(4) provides:
‘Without limiting the matters that Comcare may take into account in determining the attendant care services that are reasonably required in a particular case, Comcare shall, in making such a determination, have regard to 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.’
(b) The decision in Haberfield
As mentioned, s 29(3) was interpreted by Sackville J in Haberfield, in the following context.
Mr Haberfield ‘appealed’ to this Court on a question of law under s 44 of the AAT Act from a decision of the Tribunal. The Tribunal considered Mr Haberfield’s entitlement to compensation in respect of ‘attendant care services’ pursuant to s 29(3), claiming that he required these services by reason of serious head injuries sustained in an accident. The Tribunal held (and this was not disputed before Sackville J) that, under s 29(3), services involving assistance with showering, shaving and dressing were properly within the definition of ‘attendant care services’. In his appeal, Mr Haberfield contended that the Tribunal should also have held that he was entitled under s 29(3) to compensation for services including driving him, accompanying him to shops, medical appointments and social occasions, and providing him with emotional support – as statutory ‘attendant care services’.
In his construction of s 29(3), Sackville J noted that this provision imposes a compensation liability if (a) an injury is suffered; (b) as a result of the injury the employee obtains ‘attendant care services’; and (c) the employee reasonably requires such services. His Honour observed (at [23]) that the definition of ‘attendant care services’ is ‘central’ to the operation of s 29(3); that this definition excluded certain categories of services (including nursing care); and that services are within the definition only if (as s 4(1) states) they are ‘required for ... essential and regular and personal care ... .’
As has been said, Sackville J went on to note (at [24]) that ‘personal care’ conveyed the notion of ‘catering for the basic needs of an individual which must be met to function adequately within the limits of physical ability and mental capacity’. His Honour further noted (at [25]) the qualifying words – the employee’s ‘essential and regular personal care’. (His Honour’s emphasis.)
Sackville J added (at [26]) – [27]):
‘[26] Section 29(4) of the ... Act specifies six matters that must be taken into account in “determining the attendant care services that are reasonably required”. The sub-section implies that, in a particular case, some attendant care services may be reasonably required, but others may not be. In other words, s 29(4) leaves open the possibility that the decision-maker may determine that none of the attendant care services obtained by an employee is reasonably required, having regard to the six matters identified in s 29(4)(a)-(f). This is so notwithstanding that services cannot qualify as “attendant care services” unless they are required for the essential and regular personal care of the employee.
[27]In making the determination contemplated by s 29(4) the decision-maker is required to take into account each of the six matters identified in the subsection. This is not to say that each of the six matters will necessarily be relevant to the circumstances of a particular case. For example, there may be no question of the employee wishing to undertake or continue employment (cf s 29(4)(d)). Furthermore, the matters listed in s 29(4) are not necessarily exhaustive of all the considerations that should be taken into account, since s 29(4) expressly contemplates that the decision-maker may take account of other relevant matters in determining the attendant care services required in a particular case.’
His Honour went on to observe of the Tribunal’s reasons for rejecting Mr Haberfield’s claim (at [69] – [70]):
‘[69] The AAT’s explicit reasoning on the applicant’s asserted need for someone to drive him to the shopping mall and elsewhere is confined to a single paragraph ([228], reproduced at [46] above). The AAT simply stated that it had already found that such services were not attendant care services within the meaning of the ... Act.
[70]The cross-reference is at first blush a little puzzling, as the AAT had not previously made a finding in these terms. However, the AAT had found (at [221]) that the drop attacks were not as frequent as the applicant had maintained and that his condition was less disabling than he had suggested in his evidence. The AAT had also found that the care required by the applicant was limited to that involving assistance with showering, shaving and dressing (at [211], [225]). A fair reading of the AAT’s admittedly oblique cross-reference in [228] is that it had concluded, as a matter of fact, that the applicant did not require such services for his “essential and regular personal care”, accordingly, they did not constitute “attendant care services” as defined. This is simply a finding of fact, not dependent upon a particular construction of the definition of “attendant care services”. Certainly it does not imply that the AAT considered that driving a person to appointments or even to a shopping centre could never constitute “services required for the essential and regular care” of an applicant. There was simply no occasion for the AAT to address that general question.’
Sackville J noted (at [74]) that the Tribunal found, on medical opinion evidence, that personal care of an essential and regular type was not required by Mr Haberfield in connection with his ‘drop attacks’; and that this finding was intended to embrace Mr Haberfield’s claim for emotional care as a consequence of the ‘drop attacks’. His Honour said (at [76]) that a finding by the Tribunal in favour of Mr Haberfield on this point would have been inconsistent with its finding that the only attendant care services required were those that involved bathing, shaving and dressing.
Sackville J added (at [76]):
‘I do not construe the AAT’s reasons as resting on the proposition that emotional support and companionship, regardless of the circumstances, can never constitute “attendant care services” within the meaning of the ... Act.’
Accordingly, his Honour held that the Tribunal made no errors of law when finding, as a matter of fact, that Mr Haberfield did not require for his ‘essential and regular personal care’ someone to drive him to shops, medical appointments and social occasions, nor to provide emotional support and companionship.
(c) Reasoning and conclusion on the appeal
On behalf of Mr Wilby it is first submitted that ‘[t]he object [of s 29(3)] is that a weekly payment will compensate up to a prescribed maximum for all the expenses of obtaining attendant care; that [it] would be absurd if Parliament intended that essential incidental expenses would not be covered’ and that, as s 29(4) shows, ‘the attendant care payments are directed at assisting disabled employees to live outside institutions if this can reasonably be achieved with the assistance of an attendant’. (Emphasis added.)
I cannot accept the argument.
In my view, the present question is one of characterisation; and the costs in issue do not, in truth, bear the character or complexion so propounded.
In my opinion, there is nothing in the statutory scheme, including s 29, which could be read as conferring any right or entitlement to compensation for transport (etc) services provided by the suppliers of those services to those attending the employee during a holiday.
There is no express provision in the Act to this effect. These are not ‘essential’ or ‘incidental’ expenses. Nor are they directed at assisting disabled employees to live outside an institution.
Nor, in the absence of any explicit provision, is there any basis, in my view, for implying into the Act such an entitlement to compensation. As Sackville J noted, the definition of ‘attendant care services’ is central to the operation of s 29(3). It will be recalled that, under this definition, compensation is payable for services required for the employee’s essential and regular personal care. This definition cannot, in my opinion, pick up a claim for compensation for the cost of services supplied by transport operators (etc.) to the employee’s attendants. Such a claim would have an entirely different character.
Another indicator in s 29(3) tending to negative the implication now sought to be made is the imposition of the limit of $200 (before indexation) per week, something consistent with the cost of an attendant providing essential and regular personal care to the employee. It is, however, inconsistent with any vesting in an employee of a statutory entitlement to compensation for the price (‘one off’ and potentially substantial) payable for transport (etc.) services provided to the attendant.
The language of s 29(4) is equally consistent with the absence of any statutory claim for compensation of the kind now propounded. The reference (in par (c)) to ‘the extent to which it is reasonable to meet any wish by the employee to live outside an institution’ is expressed as a mandatory consideration for Comcare. There is no mention here, or in any other part of s 29(4), of the consideration, mandatory or otherwise, of any wish of the employee to travel, nor (consequentially), of any liability in Comcare for compensation for the cost of services supplied by transport operators etc. to attendants.
In summary, in my view, the costs now claimed are not incurred for services for Mr Wilby’s personal care. Rather, they should be characterised as expenses for travelling, food and accommodation provided for another person. On no view could it be said these ‘services’ are required for the essential or regular personal care of Mr Wilby. Nor, in the absence of any statutory language to enable it to be done, is it open to Mr Wilby to claim that these are associated or ‘incidental’ items picked up by s 29.
Accordingly, the second ground of appeal does not, as a free-standing issue, arise.
For completeness, it should be noted that, pursuant to s 16, Mr Wilby still receives compensation for twenty-four hour nursing care and that Comcare does not challenge Mr Wilby’s entitlement here. As has been seen, the present claim was propounded under s 29(3), and not s 16.
ORDERS
It follows that, since no error of law in the Tribunal’s interpretation of s 29, or of the Act otherwise, has been demonstrated, the appeal must fail. Accordingly, it will be ordered that the application is dismissed.
On the question of costs, whilst these usually follow the event, there are some special considerations here. This is a ‘test’ case (Haberfield arose in a different context) and some of the earlier actions and decisions in this matter could have created perceptions in Mr Wilby that this appeal might have succeeded. In those circumstances, there will be no order for costs.
I make these orders:
1. Application dismissed.
2. No order for costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Beaumont. Associate:
Dated: 4 December 2003
Counsel for the Applicant: Mr M Smith Solicitor for the Applicant: Rockliffs Counsel for the Respondent: Miss E Ford Solicitor for the Respondent: Dibbs Barker Gosling Date of Hearing: 18 November 2003 Date of Judgment: 28 November 2003
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