What's New in Commonwealth Compensation

Decisions in this edition:

Medical Expenses

The Applicant lodged claims under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘1988 Act’) for post traumatic stress disorder and osteoarthritis of the knees as being related to his Army service for which the Respondent subsequently accepted. On various occasions in 2005, 2006 and 2007, the Applicant travelled to Brisbane where he consulted with psychiatrists Dr Bruce Lawford and Dr Robert Athey, psychologist Jacinta Wagner and rheumatologist Dr Phillip Vecchio. He claimed payment for the associated costs of this travel to Brisbane, of accommodation in Brisbane and of lost hours of work in Thailand.

In March 2007, the Applicant’s claims for reimbursement of costs for attending Dr Lawford on in October 2006 and March 2007 were rejected by the Respondent. On that date, the Respondent also rejected his claim for reimbursement of costs for attending Dr Athey in December 2005. By reviewable decision made in March 2009, the Respondent confirmed that the decision in relation to Dr Lawford had been made under section 16 of the 1988 Act. It reviewed the rejection decision under section 60 of the 1988 Act and affirmed that decision. This was on the basis that the decision by the Applicant to move to Thailand was a matter of personal choice by him, that the Respondent was not aware that he had moved to Thailand and that he had not been reasonably required to travel from Thailand to Brisbane for treatment. In the decision of March 2009, the Respondent also noted that the earlier rejection of the Applicant’s claim for reimbursement in relation to his attendance at an examination by Dr Athey in December 2005 had been made under section 57 of the 1988 Act. TheRespondent determined that this decision was not reviewable under the 1988 Act.

In September 2009, the Respondent rejected the Applicant’s claims for reimbursement of costs for attending Dr Vecchio in December 2006 and for attending Ms Wagner in August and September 2007. By reviewable decision made in November 2009, the Respondent confirmed that the decision in relation to MsWagner had been made under section 16 of the 1988 Act. It reviewed that decision under section 60 of the 1988 Act and affirmed that decision. Again, it noted that the decision by the Applicant to move to Thailand was a matter of personal choice, that the Respondent was not aware that he had moved to Thailand and that he had not been reasonably required to travel from Thailand to Australia for treatment which could have been obtained by him on the several occasions when he was already in Australia. It also determined that the Respondent did not see Ms Wagner in September 2007. In the decision of November 2009, the Respondent also noted that the earlier rejection of Mr Stack’s claim for reimbursement in relation to his attendance at an examination by Dr Vecchio had been made under section 57 of the 1988 Act. The Respondent determined that this decision was not reviewable under the 1988 Act.

The issues for the Tribunal’s consideration were:

• whether the decisions relating to Dr Athey and Dr Vecchio were made under section 57 of the 1988 Act;
• whether those decisions were reviewable;
• if so, whether costs associated with the Applicant’s travel to Brisbane for treatment by Dr Athey and Dr Vecchio were recoverable by him; and
• whether costs associated with the Applicant’s travel to Brisbane for treatment by DrLawford and Ms Wagner were recoverable by him.

In relation to the first issue, the Tribunal acknowledged that the Applicant’s claims for reimbursement of costs incurred in relation to his appointments with Dr Athey and Dr Vecchio were made under section 57 of the 1988 Act as part of the processing of his claims and his claims for reimbursement of expenses were rejected under section 57 of the 1988 Act as not having been reasonably incurred by him.

Regarding the second issue, the Tribunal highlighted the findings in the reviewable decisions in which it was determined that these decisions made under section 57 of the 1988 Act were not reviewable. The Tribunal noted that sections of the 1988 Act comprising determinations which were reviewable under section 62 of the 1988 Act were listed in section 60 of the 1988 Act comprising determinations and this list included section 16, but not section 57, of the 1988 Act. The Tribunal accepted the submission of the Respondent that decisions under section 57 were not subject to review and it was on that basis that the delegate determined that the decisions relating to the Applicant’s claims for appointments with Dr Athey and Dr Vecchio were not reviewable. The Tribunal affirmed this decision. Therefore, the Tribunal did not have to consider the third issue.

In relation to the fourth issue, the Tribunal was satisfied that the Applicant did not consult with the Respondent about his travel arrangement to see Dr Lawford and Ms Wagner, that appropriate medical treatment was available in Thailand and that he made no meaningful attempt to ascertain whether such treatment was available in Thailand. In those circumstances, the Tribunal was satisfied that the Applicant’s costs of travel to see Dr Lawford in October 2006 and March 2007 and Ms Wagner in August 2007 did not constitute expenses reasonably incurred by him for the purpose of obtaining for treatment for his post traumatic stress disorder.

The Tribunal further noted that under section 16(6)(b)(ii) of the 1988 Act, compensation is payable to the Applicant for reasonably incurred expenditure for remaining, for the purpose of obtaining the medical treatment from Dr Lawford and Ms Wagner, at a place to which he has made a journey for that purpose. Whilst the Tribunal acknowledged that the Applicant travelled to Brisbane several times per year and, while he did seek treatment on three occasions, it was satisfied that the dominant purpose of his stays in Brisbane was for personal reasons and that his accommodation costs were not reasonably incurred expenditure for the purpose of obtaining that medical treatment.

In relation to the Applicant’s claims for reimbursement of lost wages, the Tribunal noted that no specific provision was made in section 16 of the 1988 Act for compensation in the form of reimbursement of earnings lost while obtaining medical treatment in accordance with that provision. The Tribunal considered it might have been embraced by the terms of section16(6)(b)(i) thereof, however it was difficult to see how lost payments would constitute an expenditure item. Nevertheless, given that that provision was dependent on a journey being compensable and the Tribunal determined that the travel undertaken by the Applicant was not compensable, these arguments did not assist the Applicant.