Blackwell and Comcare (Compensation)

Case [2017] AATA 1118

Blackwell and Comcare (Compensation) [2017] AATA 1118 (29 June 2017)

Division:GENERAL DIVISION

File Number:           2016/6411

Re:Kym Blackwell

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:29 June 2017

Place:Brisbane

The Tribunal refuses to stay the operation or implementation of the decision under review.

....................[sgd].....................

Senior Member T. Tavoularis

CATCHWORDS

INTERLOCUTORY PROCEEDING – Application for Stay of Decision under review – whether desirable or appropriate to stay decision under review – refusal to stay the operation or implementation of the decision under review

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 41(2)

Safety, Rehabilitation and Compensation Act 1988, ss 16, 19, 29, 114

CASES

Alexander and Migration Agents Registration Board (1995) 40 ALD 99

Australian Postal Corporation v Mowbray (2003) 77 ALD 440

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

Avtex Air Services Pty Ltd and Civil Aviation Safety Authority [2010] AATA 716

Clement and Comcare [2006] AATA 705

Dart and Director-General of Social Services [1982] AATA 78

Plumb v Comcare (1992) 39 FCR 236

Re Repatriation Commission and Delkou (1985) 8 ALD 454

Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065

Secretary, Department of Social Services and McNamara [2016] AATA 189

Seymour and Migration Agents Registration Authority [2006] AATA 369

Warnock and Comcare [2009] AATA 20

Wildlife Protection Association of Australia Inc. and Minister for the Environment and Heritage and Ors [2006] AATA 29

WorldAudio Limited and AusCoast Broadcasting Pty Limited and Australian Communications and Media Authority [2006] AATA 177

REASONS FOR DECISION

Senior Member T. Tavoularis

20 July 2017

INTRODUCTION

  1. Mrs Kym Blackwell (“the Applicant”) has applied for a stay of Comcare’s (“the Respondent”) decision to deny compensation for medical benefits, incapacity payments and household services pursuant to sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”). The basis of Comcare’s decision is that, in its view, the Applicant does not continue to suffer the effects of the accepted condition: unspecified disc disorder, cervical known as C5/6 disc prolapse (“the reviewable decision”).

  2. The reviewable decision comprises the subject matter of application 2016/6411 presently live before this Tribunal.

  3. The Applicant seeks to stay the operation or implementation of the reviewable decision by way of an order pursuant to section 41(2) of the Administrative AppealsTribunal Act 1975 (“the AAT Act”).

    RELEVANT LEGISLATION AND LEGAL REQUIREMENTS

  4. Section 41(2) of the AAT Act provides that:

    The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination…

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AGLC
Blackwell and Comcare (Compensation) [2017] AATA 1118
Case
[2017] AATA 1118
Decision Date

CaseChat Overview and Summary

This matter came before T. Tavoularis SM of the Administrative Appeals Tribunal concerning an application by the Applicant for a stay of a decision under review. The Applicant was receiving incapacity payments and associated compensation for accepted conditions, including physical injuries and major depressive disorder. The dispute centred on the Applicant's request to stay the operation or implementation of a decision that would affect these payments, pending the substantive review of that decision.

The Tribunal was required to determine whether it was desirable or appropriate to grant a stay of the decision under review. In reaching this determination, the Tribunal considered several factors, including the prospects of success of the substantive application, any prejudice to the parties if a stay were granted or refused, the interests of affected persons, the public interest, whether the substantive application would be rendered nugatory without a stay, and any difficulties in recovering monies paid if a stay were granted or refused. The Applicant contended that a refusal of the stay would adversely affect her health, leading to deterioration of her physical and mental conditions, and would disadvantage her in preparing her case. The Respondent argued against the stay.

The Tribunal's reasoning involved assessing the Applicant's contentions against the established legal principles for granting a stay. The Applicant argued that denial of treatments would worsen her conditions and impair her cognitive capacity to instruct legal representatives. She also contended that the Respondent would suffer no prejudice as overpayments could be recovered or waived, and that her prospects of success were good due to alleged flaws in the Respondent's decision-making. However, the Tribunal was not convinced that refusing the stay would render the substantive proceedings abortive or nugatory, nor that it would cause financial hardship to the Applicant. Furthermore, the Tribunal considered the merits or prospects of success to be a neutral factor in this determination.

Consequently, the Tribunal refused the application to stay the implementation of the decision under review dated 19 September 2016.

Orders

Orders of the court

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Background

Background to the litigation

The main factors to be considered when deciding whether to stay the operation of a decision under review were collectively discussed in the following decisions: Wildlife Protection Association of Australia Inc. and Minister for the Environment and Heritage and Ors [2006] AATA 29, WorldAudio Limited and AusCoast Broadcasting Pty Limited and Australian Communications and Media Authority [2006] AATA 177 and Re Repatriation Commission and Delkou (1985) 8 ALD 454. Stated cumulatively, those factors inform a decision-maker that s 41(2) of the AAT Act invites consideration of issues such as: ·the prospects of success or otherwise of the substantive application; ·any prejudice to a party if the stay is granted or not granted; ·the interests of persons affected by the review; ·the public interest; ·whether the substantive application will be rendered nugatory if the stay is not granted; and·any difficulty that may arise in the recovery of monies paid as a result of a grant, or refusal to grant, a stay order.FACTS The Applicant presently receives incapacity payments (and associated forms of compensation) on the basis of other accepted conditions. Those conditions and the applicable payments are accurately summarised at paragraph 4 of the Respondent’s Outline of Submissions.[2] [2] Exhibit 7, Respondent’s Outline of Submissions, pp 1-2, at [4]. 4.1 Claim 1 (being the claim to which the C5/6 disc prolapse also relates): open wound(s) multiple of unspecified sites, sprain of unspecified site of knee and leg left), wrist strain (bilateral). Ankle sprain(left) and major depressive disorder, single episode·Incapacity payments·GP consultations·Pharmaceuticals – narcotics, analgesics, antidepressants, muscle relaxants·Psychiatry once per fortnight.4.2 Claim 2: right wrist, hand, fingers and shoulder·Household help/ironing 3.5 hours per week·GP consultations (paid under claim 1)·Pharmaceuticals – narcotics, analgesics, antidepressants, muscle relaxants (paid under claim 1) ·Orthopaedic specialist review·Physiotherapy once per week. 4.3 Claim 3: aggravation of supraspinatus left shoulder and aggravation of neck sprain·GP consultations (paid under claim 1) ·Pharmaceuticals (paid under claim 1)·Orthopaedic specialist review (paid under claim 2). APPLICANT’S CONTENTIONS FOR A STAY It was contended on behalf of the Applicant that the following factors mitigate in favour of the granting of a stay: (i) in the absence of a stay of the reviewable decision, the Applicant’s health will be adversely affected. Put shortly, the denial of the stay (and thus, the resulting treatment) will: (a) result in the deterioration of her unspecified disc disorder, cervical condition. This, contends the Applicant, would arise from denial of physiotherapy, pain relief medication, remedial massage and diagnostic treatments that would otherwise be available to her;(b) in turn, result in the deterioration of her severe major depression disorder because the physical pain upon which the mental health symptoms are apparently based would not be remediated as a result of denial of the abovementioned treatments. According to the Applicant, the denial of the claimed treatments would worsen her mental health symptoms leading to an increased risk of suicidal ideation. It was urged upon the Tribunal that “In the absence of an order staying the Respondent’s decision, that deterioration is likely to continue with a risk of irremediable consequences.”[3][3] Exhibit 1, Applicant’s Outline of Submissions, p 6, at [18].(ii) in the absence of a stay, the Applicant will be disadvantaged in preparing and presenting her case upon the hearing of the substantive application. As I understood it, the essence of this contention is that if her mental health symptoms are caused to deteriorate as a result of a stay not being granted, there would be “profound decompensation in her condition”[4] and she will not have sufficient cognitive capacity to properly instruct legal representatives who may represent her during that substantive hearing; [4] Ibid, p 7, at [20]. (iii) there is, apparently, no prejudice to the Respondent by granting the stay because: (a) the Respondent can recover those overpayments as a debt(s); and then (b) the Respondent can write off or waive that debt(s).(iv) the Applicant’s merits or prospects of success in the substantive application are “good”[5] and are a relevant factor notwithstanding: (a) such an assessment – at this interlocutory stage – would amount to a “preliminary trial of the issues that will ultimately have to be considered by the Tribunal”[6]; (b) an assessment of the merits or prospects of the substantive claim cannot be properly made because the nature of the Tribunal’s decision-making task involves it addressing the question of whether it is positively satisfied that compensation payments – which are the subject of the substantive proceeding - should cease.(c) there are certain flaws in the Respondent’s decision-making process arising from: i.the delegate not addressing the correct statutory question; ii.the delegate failing to properly deal with the medical evidence.[5] See Exhibit 1, Applicant’s Outline of Submissions, p 9 at [29]. [6] Ibid, p 7, at [24], citing Davies J in Dart and Director-General of Social Services [1982] AATA 78. RESPONDENT’S CONTENTIONS AGAINST A STAY

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Taking into account my abovementioned comments (1) that I am not convinced the refusal of a stay order would render the substantive proceedings abortive or nugatory; (2) that I am not convinced refusal of a stay order would cause financial hardship for the Applicant and (3) that the merits / prospects of success of the parties in the substantive application is a neutral factor in any determination of the making of a stay order – I do not consider a stay order is appropriate for the purpose of securing the effectiveness of the hearing and determination of the substantive application.DECISION The application to stay the implementation of the decision under review dated 19 September 2016 (affirming a determination dated 17 August 2016) is refused.

Ratio Decidendi

Legal Principle Established

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