Chalfont and Comcare [2009] AATA 540
Administrative Appeals Tribunal – Brisbane Registry – No.2008/59211
In Brief
- Comcare is not liable to pay compensation for expenses incurred travelling to and from medical appointments if the length of the journey made (including the return part of the journey) is less than 50 kilometres.
Background
Comcare accepted liability to pay compensation to the applicant, Mr Chalfont, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") for a left knee injury, a left shoulder injury and diverticula of the colon.
Mr Chalfont received physiotherapy on some 18 occasions at a hospital located 38 kilometres, including the return journey, from his residence between 7 December 2004 and 18 March 2005. Additionally, Mr Chalfont consulted an orthopaedic surgeon on 2 occasions at a surgery located 44 kilometres, including the return journey, from his residence in October 2004 and May 2005.
Comcare denied liability to reimburse Mr Chalfont on the basis that none of the journeys exceeded 50 kilometres. Mr Chalfont sought a review of that decision.
Relevant Legislation
Section 16(6) of the SRC Act provides as follows:
"(6) Subject to subsection (7), if:
(b) the employee reasonably incurs expenditure in doing either or both of the following:
(ii) remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
(c) in respect of the journey--of an amount worked out using the formula:
specified rate per kilometre means such rate per kilometre as the Minister specifies, by legislative instrument, 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).
Section 16(7)(a) of the SRC Act provides that Comcare is not liable to pay compensation under subsection (6) unless 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.
The Decision
Mr Chalfont gave evidence that on each of the occasions identified by him, due to his medical condition, he was required either to return home to change his attire before resuming the journey, or, to detour in order to locate suitable toilet facilities. The result, Mr Chalfont alleged, was that each of the journeys claimed exceeded 50 kilometres and accordingly, he was entitled to compensation.
Deputy President P E Hack SC referred to earlier claims for reimbursement for travelling expenses made by Mr Chalfont and noted that if Mr Chalfont's alleged need to return home or to locate toilet facilities occurred as frequently as he said it did, that these earlier claims should also have had inflated distances. DP Hack also noted that the first significant mention of an extended journey was not made until 12 April 2009.
After reviewing the evidence, DP Hack, concluded that the late formulation of Mr Chalfont's claim and the manner in which it matured over time, left him with no confidence in Mr Chalfont's evidence. DP Hack concluded that he was unable to accept Mr Chalfont's evidence and accordingly, affirmed Comcare's decision to deny liability.
Implications
This decision confirms that Comcare and other licensees are not liable to pay compensation for travel expenses incurred when an injured worker is travelling to and from medical appointments if the length of the journey made (including the return part of the journey) is less than 50 kilometres.
Footnote
1. Deputy President P E Hack SC
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
