Brackenreg and Comcare [2003] AATA 1358 (11 November 2003)

Last Updated: 21 April 2004

DECISION AND REASONS FOR DECISION [2003] AATA 1358

ADMINISTRATIVE APPEALS TRIBUNAL )

) No D2003/34

GENERAL ADMINISTRATION DIVISION	)
	Re	DEBORAH BRACKENREG

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Senior Member B J McCabe

Date 11 November 2003

Place Brisbane

Decision

The Tribunal decides that the operation or implementation of the decision under review be stayed until the hearing and determination of the application for review or until further earlier order.

(Sgd) B J McCabe

Senior Member

CATCHWORDS

COMPENSATION - Stay application - considerations relevant to stay order - interest of persons under review - likelihood of success of application for review

Safety, Compensation and Rehabilitation Act 1988 s 16

Administrative Appeals Tribunal Act 1975 s 41(2)

Repatriation Commission and Delkou (1985) 8 ALD 454

Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380

REASONS FOR DECISION

Senior Member B J McCabe

INTRODUCTION

1. Ms Deborah Brackenreg has applied for a stay of Comcare's decision to cease liability to award medical benefits under section 16 of the Safety, Compensation and Rehabilitation Act 1988. The decision was made on 23 June 2003, and affirmed by a review officer on 29 September 2003.

2. The power to stay a decision is set out in section 41(2) of the Administrative Appeals Tribunal Act 1975. In the absence of a stay, the decision is implemented even while it is in the process of being reviewed by the Tribunal.

THE FACTS

3. The history of the applicant's injury and claim and her dealings with Comcare are set out in the Tribunal's decision of 18 December 2002 (Brackenreg and Comcare [2002] AATA 1325). Deputy President Forgie dealt with the case on the basis the claim was in respect of a musculo-ligamentous neck injury arising out of a motor vehicle accident on 7 March 1984. The reviewable decision in these proceedings also started from this proposition.

4. The applicant says the difficulties she is experiencing nearly 20 years after the accident are related to that accident - the injuries are more extensive and complicated than anyone realised, she explained. She is on an intensive regime of medication and requires treatment from a range of specialists. She notes Comcare has paid for all her treatment to date - Comcare has not previously taken the point that some of the treatment was attributable to other injuries. Comcare says at least some of the applicant's health problems are caused by reactions to drugs she is taking to treat conditions for which Comcare has never accepted liability. Mr Routh, for the respondent, noted Deputy President Forgie's observation that the applicant sustained other injuries including a fractured skull when she fell from a horse. He also suggested the condition from which Ms Brackenreg suffers may be congenital, or in any event unrelated to the motor vehicle accident.

5. Ms Brackenreg says she is in straitened financial circumstances. She has a number of unpaid bills. Creditors - especially her mortgagor - are pressing for payment. She provided the Tribunal with copies of invoices and letters of demand and her bank statement, and I accept she is telling the truth about her financial affairs. She says her only source of income is her fortnightly superannuation payment. She says she cannot afford to pay for her medication without Comcare's assistance pending resolution of her claim. Dr George Chong Wah said in his letter of 31 October 2003 that suddenly discontinuing her treatment would cause "significant detriment and deterioration of her condition...".

6. I note Dr Chong Wah asserts that the condition ("a traumatic cervical syrinx, a cervical disc lesion, fractures of the roots of most of her teeth, and other conditions some of which have been the results of the medications she needs to use for these complaints") is attributable to the motor vehicle accident.

7. Ms Brackenreg says she has recently completed her legal studies and is hopeful of getting a job soon. She says if her treatment is interrupted, it will be impossible for her to work.

THE LAW

8. The discretion to order a stay is set in section 41(2). The power was considered by the Tribunal in Repatriation Commission and Delkou (1985) 8 ALD 454. The case suggests the Tribunal should consider:

* Any hardship likely to be suffered by either party if the stay is granted or refused;

* The likelihood of the money being recovered from the applicant if she is unsuccessful in her application to review the determination in respect of which she has sought the order for a stay; and

* The prospects of success in that application for review.

9. Deputy President Hall noted the legislation ultimately required the Tribunal to consider whether it was desirable to order the stay after having regard to the interests of the parties: see also Re Griffiths Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380.

EXERCISE OF THE DISCRETION IN THIS CASE

10. I am satisfied from the evidence before the Tribunal that the applicant will suffer severe hardship if she is forced by her financial circumstances to discontinue all or part of her treatment regime. Mr Routh was unaware of the evidence of creditors pressing her for payment, and conceded the first leg of the test in Delkou might be satisfied.

11. It is unclear whether the applicant will be able to repay any money she receives if she is unsuccessful in her ultimate application. She indicated she is hopeful of obtaining paid employment in the future, although she is not currently looking for work - she has only just finished her practical legal training that would equip her to enter legal practice.

12. Mr Routh says the real issue here is whether the applicant's case has any prospect of success. He says there are poor prospects. I agree there are doubts about her claim: she requires a surprising amount of treatment for a musculo-ligamentous neck injury that occurred nearly 20 years ago. There is a real question over whether the conditions that she claims to suffer from now are really attributable to the original injury which was the subject of the settlement agreement in 1995. I note however that the Tribunal said in Delkou that it was not appropriate when considering prospects to conduct a preliminary trial of the issues: at 462. In those circumstances, it is difficult and probably unhelpful to delve too deeply into the nice questions of law and fact that might be thrown up in the hearing.

13. I must then have regard to the ultimate question: is it desirable to grant the stay having regard to the interests of the parties? The interests of the respondent presumably extend to not paying any more money than it is obliged to do so, particularly in circumstances where that money could be irrecoverable. Comcare should not have to pay for injuries for which it is not responsible. There is some evidence in this case that Comcare is not responsible for the full extent of the injuries for which the applicant continues to require treatment. I note that Comcare has been meeting all of those obligations until it made the decision under review.

14. The applicant's interest is more complicated. She ultimately wants to be properly compensated for her injuries in accordance with the Act. She has already been compensated in full in respect of some components of her loss under the terms of the settlement agreement entered into in 1995. But she also wants to preserve her health while the review process is being undertaken. If the decision to cease payments is not stayed, she cannot afford to continue her treatment. There is evidence from her doctor in particular that her health will be seriously undermined if that occurs, and she will be in considerable pain.

15. In all the circumstances, I think the detriment to the applicant's health weighs heavily in favour of granting the stay, notwithstanding the doubts about the ability to recover monies paid prior to the final hearing and the real questions about the prospects of success.

CONCLUSIONS

16. In all the circumstances, I think the detriment to the applicant's health weighs heavily in favour of granting the stay, notwithstanding the doubts about the ability to recover monies paid prior to the final hearing and the real questions about the prospects of success.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe

Signed: .....................................................................................

Administrative Assistant

Date of Hearing 11 November 2003

Date of Decision 11 November 2003

The Applicant appeared in person

For the Respondent Mr S Routh, Solicitor