Brackenreg and Comcare - [2009] AATA 819

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 819
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No 2007/5101
  )          No 2007/5276
  )          No 2008/0575
  )          No 2008/5877

GENERAL ADMINISTRATIVE DIVISION )

Re DEBORAH BRACKENREG

Applicant

And

COMCARE

Respondent

DECISION

Tribunal M J Carstairs, Senior Member
Date23 October 2009
PlaceBrisbane

Decision
In application 2007/5101, the Tribunal affirms the reviewable decision dated 15 October 2007.
In application 2007/5276, the Tribunal affirms the reviewable decision dated 16 October 2007.
In application 2008/0575, the Tribunal affirms the reviewable decision dated 22 January 2008.
In application 2008/5877, the Tribunal sets aside the reviewable decision dated 17 November 2008 and substitutes the decision that Comcare is liable to pay compensation for Ms Brackenreg’s tempo-romandibular joint dysfunction, and, under s 16 of the Safety, Rehabilitation and Compensation Act 1988, for the cost of an occlusal splint.

Either party may make an application in relation to the costs of the proceedings in application 2008/5877 within 14 days of the date of this decision. If no such application is made, the Tribunal orders that the applicant’s costs in application 2008/5877 be paid in accordance with
s 67 of the Safety, Rehabilitation and Compensation Act 1988.

.....................[Sgd].....................

Senior Member
CATCHWORDS
COMPENSATION – motor vehicle accident – applicant suffered whiplash injury – respondent accepted liability for musculoligamentous injury to neck – whether applicant recovered from compensable injury – whether conditions of headaches, syringomyelia, and cervical disc degeneration related to the motor vehicle accident – Tribunal affirms reviewable decisions
COMPENSATION – gastritis – condition arising from use of pain medication – condition not compensable – Tribunal affirms reviewable decision
COMPENSATION – psychiatric condition – diagnosis – whether psychiatric disorder related to the motor vehicle accident – Tribunal affirms reviewable decision
COMPENSATION – dental problems sustained in the motor vehicle accident – later development of temporo-mandibular joint dysfunction – treatment by occlusal splint – Tribunal sets aside reviewable decisions
Compensation (Commonwealth Government Employees) Act 1971 (Cth), s29
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 16, 19, 24
Re Brackenreg and Comcare [1993] AATA 718
Re Brackenreg and Commissioner of Taxation (2004) 53 ATR 1116
Re Brackenreg and Comcare [2002] AATA 1325
Re Brackenreg and Comcare [2005] AATA 1121
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167
Fernandez v Tubemakers of Australia Pty Ltd [1975] 2 NSWLR 190
REASONS FOR DECISION

23 October 2009 M J Carstairs, Senior Member

1. Deborah Brackenreg suffered a compensable injury to her neck as a result of a motor vehicle accident that occurred when she was on her way to work on 7 March 1984 (“the 1984 accident”). Ms Brackenreg’s utility was hit from behind, forcing it into the back of a vehicle ahead of her. She was 24 years old at the time; she is in her early fifties now.
2. Ms Brackenreg lodged a claim within a month of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brackenreg and Comcare

Details

AGLC: Brackenreg and Comcare [2009] AATA 819
Case: [2009] AATA 819
Decision Date: 23 October 2009

CaseChat Overview and Summary

The case of Brackenreg and Comcare involved a dispute between the applicant, Ms Brackenreg, and the respondent, Comcare, regarding various claims for compensation related to injuries sustained in a motor vehicle accident. Ms Brackenreg alleged that she suffered whiplash and other injuries in the accident and sought compensation for these injuries. The matter was heard by the Administrative Appeals Tribunal (AAT) under the Compensation (Commonwealth Government Employees) Act 1971 and the Safety, Rehabilitation and Compensation Act 1988. The Tribunal was required to determine whether Ms Brackenreg's claims were valid and compensable under the applicable legislation.

The Tribunal examined several claims made by Ms Brackenreg. Firstly, it considered whether she had recovered from the musculoligamentous injury to her neck, whether her headaches, syringomyelia, and cervical disc degeneration were related to the accident, and whether her psychiatric condition was related to the motor vehicle accident. Additionally, the Tribunal assessed a claim for gastritis arising from pain medication use, and a claim for dental problems that later developed into temporomandibular joint dysfunction. The central legal issue was whether the conditions and injuries claimed were directly related to the motor vehicle accident and thus compensable under the relevant legislation.

The Tribunal affirmed several reviewable decisions made by Comcare, finding that Ms Brackenreg had recovered from the compensable musculoligamentous injury to her neck. It also determined that her conditions of headaches, syringomyelia, and cervical disc degeneration were not related to the accident. Regarding her psychiatric condition, the Tribunal affirmed the reviewable decision that the psychiatric disorder was not related to the motor vehicle accident. Furthermore, the Tribunal upheld the decision that gastritis arising from pain medication use was not compensable. However, in relation to the claim for dental problems and the later development of temporomandibular joint dysfunction, the Tribunal set aside the reviewable decision and found Comcare liable to pay compensation for the dysfunction and the cost of an occlusal splint.

The final orders of the Tribunal were to affirm certain reviewable decisions and to set aside others. Specifically, the Tribunal affirmed the reviewable decisions dated 15 October 2007, 16 October 2007, and 22 January 2008. However, in application 2008/5877, the Tribunal set aside the reviewable decision dated 17 November 2008 and substituted it with a decision that Comcare is liable to pay compensation for Ms Brackenreg's temporomandibular joint dysfunction and the cost of an occlusal splint. The Tribunal also ordered that either party may apply for costs of the proceedings within 14 days, and if no application is made, the applicant's costs would be paid in accordance with s 67 of the Safety, Rehabilitation and Compensation Act 1988.

Orders

Orders of the court

In application 2007/5101, the Tribunal affirms the reviewable decision dated 15 October 2007.

In application 2007/5276, the Tribunal affirms the reviewable decision dated 16 October 2007.

In application 2008/0575, the Tribunal affirms the reviewable decision dated 22 January 2008.

In application 2008/5877, the Tribunal sets aside the reviewable decision dated 17 November 2008 and substitutes the decision that Comcare is liable to pay compensation for Ms Brackenreg’s tempo-romandibular joint dysfunction, and, under s 16 of the Safety, Rehabilitation and Compensation Act 1988, for the cost of an occlusal splint.

Either party may make an application in relation to the costs of the proceedings in application 2008/5877 within 14 days of the date of this decision. If no such application is made, the Tribunal orders that the applicant’s costs in application 2008/5877 be paid in accordance with

s 67 of the Safety, Rehabilitation and Compensation Act 1988.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		DEBORAH BRACKENREG