Green and Comcare [2003] AATA 81 (30 January 2003)

Last Updated: 31 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 81

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/1057

GENERAL ADMINISTRATIVE DIVISION	)
	Re	ROBERT GREEN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Dr J D Campbell, Member

Date 30 January 2003

Place Sydney

Decision

The Tribunal determines that the decision under review be affirmed.

[SGD] Dr J D Campbell Member

CATCHWORDS

COMPENSATION - injury - medical treatment - claim for compensation in respect of journeys for medical treatment - whether journeys which are individually less than 50 kilometres but which in total exceed 50 kilometres are compensable under section 16 of the Safety, Rehabilitation and Compensation Act 1988

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 section 16

CASES

Allen and Comcare [2001] AATA 379 considered and followed

REASONS FOR DECISION

30 January 2003

Dr J D Campbell, Member

1. In this matter Mr Robert Green ("the Applicant") seeks a review of the decision dated 15 July 2002 made by an authorised delegate of Comcare ("the Respondent") which affirmed an earlier decision, dated 24 May 2002, made by the Respondent that the Applicant was not entitled to compensation in respect of journeys made to receive medical treatment for his compensable right thumb injury.

2. A hearing was held by telephone on 17 January 2003 at which the self represented Applicant gave oral evidence. The Respondent was represented by Mr T Ainsworth, a solicitor from Philips Fox. Mr P Ontong from Comcare was also in attendance on the telephone hearing.

3. The following documents were placed into evidence before the Tribunal:

Exhibit	Description	Date
T1-T13 p1-127	Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
R1	Respondent's Statement of Facts and Contentions	10 October 2002

ISSUES

4. The relevant issue before the Tribunal was whether the Applicant was entitled to compensation for journeys made to receive medical treatment for a compensable injury to his right thumb.

LEGISLATION

5. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and in particular subsections 16 (6), (7) and (8).

BACKGROUND

6. The Applicant suffered an injury to his right thumb in 1964 while serving in the Navy. The Applicant made a claim for compensation for a broken right thumb injured while serving in the Navy in 1964 on 8 June 2001 (T4). Liability for this condition was accepted by the Respondent on 13 November 2001 (T6). The Applicant was initially treated conservatively by Dr P Scougall, Consultant Orthopaedic Surgeon as was noted in the report dated 10 August 2001 (T5). Following review on 13 December 2001, operative intervention was undertaken by Dr P Scougall on 4 February 2002 (T8). The cost of the operation was met by Comcare.

7. The Applicant was referred to a physiotherapist for treatment as part of the post surgical treatment program on 35 occasions between 22 February 2002 and 2 July 2002. The cost of the treatment was met by Comcare.

8. The Applicant claimed compensation for the reasonable cost of travel associated with attending upon his treatment providers which included:

(i) 35 trips to the physiotherapist with a return trip of six kilometres per visit; and

(ii) one trip to a hand therapist in Wollongong on 28 March 2002, being a 16 kilometres return trip.

9. On 24 May 2002 Comcare declined liability in respect of the claimed travel costs, and following a request for reconsideration by the Applicant on 14 June 2002, the Respondent affirmed the earlier decision to deny compensation to the Applicant for travel costs on 15 July 2002.

APPLICANT'S EVIDENCE

10. The Applicant detailed briefly how the original injury was less than satisfactorily treated and the ensuring need for operative intervention many years later. The Applicant did not disagree with the facts as outlined, but considered the decisions of the Respondent to be unfair.

11. In essence the Applicant believed that by virtue of his many trips to the physiotherapist, in relation to treatment for his compensable injury, consideration should be given to paying for such journeys on a cumulative basis rather than on a single journey basis.

12. The Applicant also noted the difference in the approach between Comcare and the Department of Veterans' Affairs, with the latter paying for travel expenses when he has to visit his medical specialist in Wollongong, this being a return journey of 16 kilometres.

13. The Applicant indicated, that having being made aware of the statutory material and cases on that material, in relation to compensation travel costs, there were significant difficulties in him achieving a positive outcome to his appeal.

SUBMISSIONS

APPLICANT

14. The Applicant indicated that he felt that the current legislation produced an unfair result, and further that reimbursement/compensation for travel costs seemed to vary between Comcare and Department of Veterans' Affairs, even though they were dealing with the same individual, but with different injuries/diseases.

RESPONDENT

15. The Respondent contended that:

(a) the provision of section 16(7)(a) of the Act is unequivocal;

(b) the Tribunal's decision in Allen and Comcare [2001] AATA 379 is authority for the proposition that section 16(7)(a) of the Act must be applied to each specific journey and that compensation is not payable for a series of journeys amalgamated to reach a cumulative total of 50 kilometres or more; and

(c) the Applicant is not entitled to compensation sought by virtue of the operation of section 16(7)(a) of the Act.

CONSIDERATION AND FINDINGS

16. The Tribunal notes that in this matter there is no disagreement between the two parties as to factual issues which exist in this matter, with the only issue being the interpretation of the relevant sections of the Act, namely sections 16(6), (7) and (8), which provide:

"16 Compensation in respect of medical expenses etc.

...

(6) Subject to subsection (7), if:

(a) compensation in respect of the cost of medical treatment is payable; and

(b) the employee reasonably incurs expenditure in doing either or both of the following:

(i) making a necessary journey for the purpose of obtaining that medical treatment;

(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;

Comcare is liable to pay compensation to the employee:

(c) in respect of the journey--of an amount worked out using the formula:

Specified rate per kilometre x Number of kilometres travelled

where:

specified rate per kilometre means such rate per kilometre as the Minister specifies by notice under this subsection in respect of journeys to which this subsection applies;

numbers of kilometres travelled means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey);

(d) in respect of the employee remaining for the purpose of obtaining the treatment--of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.

(7) Comcare is not liable to pay compensation under subsection (6) unless:

(a) the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or

(b) if the journey made by the employee involved the use of public transport or ambulance services--the employee's injury reasonably required the use of such transport or services regardless of the distance involved.

(8) The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:

(a) the place or places where appropriate medical treatment was available to the employee;

(b) the means of transport available to the employee for the journey;

(c) the route or routes by which the employee could have travelled; and

(d) the accommodation available to the employee."

17. In addressing the statutory framework as outlined, the Tribunal notes that section 16(6) of the Act is subject to subsection 16(7) of the Act, and further that in regard to questions arising under subsections (6) and (7) of the Act, the decision maker must have regard to matters detailed in subsection 16(8).

18. In addressing the matters raised in this appeal, the Tribunal observes that the Applicant satisfies both subsections 16(6)(a) and 16(6)(b)(i), the latter being making a necessary journey for the purpose of obtaining medical treatment.

19. In addressing subsection 16(7)(a) the Tribunal concludes that the subsection relates to a single journey and that such a single journey must exceed 50 kilometres. In so finding the Tribunal follows the decision of Senior Member Muller in Allen and Comcare (supra).

20. In turning to subsection 16(8), the Tribunal observes that there are no matters nominated, which would assist further in determining the issue raised by the Applicant under subsection 16(7)(a) of the Act.

21. In summary the Tribunal finds that the Applicant's contention, that journey travel should be treated in such a manner as to allow accumulation of kilometres from various journeys to satisfy the requirement of exceeding 50 kilometres, must fail in the light of the statutory intent detailed in subsection 16(7)(a) of the Act.

DETERMINATION

22. The Tribunal determines that the decision under review be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed: H Sim .......................................................................................

Associate

Date of Hearing 17 January 2003

Date of Decision 30 January 2003

Representative for the Applicant self represented

Solicitor for the Respondent Mr T Ainsworth, Phillips Fox