Brackenreg and Comcare

[2005] AATA 1121

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1121

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No D2003/34; D2004/13

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEBORAH BRACKENREG

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date15 November 2005

PlaceBrisbane

Decision The decisions under review are affirmed.

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

B J McCabe

SENIOR MEMBER

CATCHWORDS

COMPENSATION – Commonwealth employees – applicant involved in motor vehicle accident – respondent accepted liability for musculo-ligamentous neck injury – decisions under review limited to musculo-ligamentous neck injury – musculo-ligamentous neck injury no longer present – ongoing medical conditions not attributable to original musculo-ligamentous neck injury – decisions under review affirmed.

Safety, Rehabilitation and Compensation Act 1988 ss 16, 29, 137

Brackenreg and Comcare [2002] AATA 1325

REASONS FOR DECISION

15 November 2005               Senior Member B J McCabe

introduction

1. Deborah Brackenreg was injured in a motor vehicle accident on her way to work with the Northern Territory Treasury department on 7 March 1984. On 30 April 1984, the predecessor of the respondent accepted liability for a "musculo-ligamentous neck injury" sustained in the motor vehicle accident. In 1995, the respondent redeemed the applicant’s rights to ongoing weekly compensation when it paid her a lump sum pursuant to s 137 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The applicant says she is still suffering from the injuries she sustained in 1984 and has asked Comcare to pay her medical expenses pursuant to s 16 of the SRC Act. She has also asked for household assistance (specifically, assistance with lawn-mowing and gardening) under s 29 of the SRC Act. The respondent denies the applicant continues to suffer from the injuries for which it is liable. It refuses to meet the expenses.

2.      The applicant has asked the Tribunal to reconsider the matter. For reasons I will explain, I think Comcare is not liable to pay the expenses. The decisions under review are therefore affirmed.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. Two volumes were filed in respect of Case No D2003/34 (exhibit one), and a separate volume was filed in Case No D2004/13 (exhibit two). The following documents were also tendered in evidence at the hearing:

·List of applicant’s medications (exhibit 3);

·Summonsed documents received from Royal Darwin Hospital - 12 November 2004 (exhibit 4);

·Handwritten extract from summonsed documents received from Night and Day Medical and Dental Surgery – 12 December 2003 (exhibit 5);

·Extract from the transcript of previous proceedings dated 31 May 2000 (exhibit 6);

·Letter of Ms Brackenreg to Professor Stoodley dated 28 September 2004 (exhibit 7);

·Summonsed documents received from Smith Street Dental Practice – 23 June 2005 (exhibit 8);

·Letter of Professor Stoodley to Dr Chong Wah dated 13 August 2004 (exhibit 9);

·Letter of Professor Stoodley to Ms Brackenreg dated 17 November 2004 (exhibit 10);

·Report of Dr Blue dated 2 August 2004 (exhibit 11);

·Report of Dr Halcrow dated 15 October 2004 (exhibit 12);

·Report of Dr Markou dated 27 July 2004 (exhibit 13);

·Letter of Dr Maiolo to the applicant dated 7 August 2003 (exhibit 14);

·Comcare invoice list of payments dated 13 May 2004 (exhibit 15);

·Statement of Dr Croser dated 16 November 2004 (exhibit 16);

·Report of Associate Professor Burns dated 7 June 2004 (exhibit 17);

·Report of Associate Professor Burns dated 18 November 2004 (exhibit 18);

·Summonsed documents receive from Night and Day Medical Centre and Dental Surgery – 12 December 2003 (exhibit 19); and

·Letter of Sparke Helmore to the applicant’s solicitors dated 1 June 2005 (exhibit 20).

4.      Ms Brackenreg gave evidence at the hearing, which was held in Darwin. The following witnesses were also called to give evidence:

·Professor Marcus Stoodley; 

·Dr Petros Markou;

·Dr Cosimo Maiolo;

·Associate Professor Richard Burns;

·Dr Anthony Blue; and

·Dr Stephen Halcrow

5.      The applicant was represented by Mr Johnson. Ms Ford represented Comcare.

history of the proceedings

6.      Deputy President Forgie set out the history of the applicant’s dealings with the respondent and its predecessor between 1984 and 2002 in the course of the Tribunal’s decision in Brackenreg and Comcare [2002] AATA 1325. I will not reproduce the whole of that history here.

7.      There are two decisions under review in these proceedings. The first, relating to file D2003/34), is dated 29 September 2003. The decision is reproduced at document T195. The reconsideration decision says:

“the weight of contemporaneous specialist medical opinion, indicates that there are no longer any orthopaedic, neurologic or psychiatric conditions arising from the injury sustained on 7 March 1984.”

8.      That reviewable decision affirmed a Determination dated 23 June 2003. The Determination says:

“The current evidence available on file, points to the fact that you no longer suffer from the effects of your compensable injury sustained on 7 March 1984, no further approvals for treatment can be granted under s 16 of the Act.”

9. The second decision relates to file D2004/13. The file deals with the applicant’s request for travel and accommodation expenses associated with a visit to a doctor in Sydney and other medical treatment, and to a claim for household assistance under s 29. The Determination refusing payment is contained in a letter from Comcare dated 8 December 2003. The reviewable decision is reproduced at document T19, exhibit two. It concludes the applicant is not entitled to claim expenses under s 16 for treatment of syringomyelia because Comcare has never accepted liability in respect of that condition. It also says the Tribunal’s earlier decision in Brackenreg and Comcare [2002] AATA 1325 found there was no ongoing obligation to provide household service benefits.

10.     Each of the reviewable decisions refer to the original decision to accept liability for "musculo-ligamentous neck injury". That determination was made on 30 April 1984. Deputy President Forgie pointed out that determination has never been set aside or varied: see Brackenreg and Comcare [2002] AATA 1325 at paragraph 17.

11. In her submissions, Ms Ford said nothing had changed since DP Forgie’s decision: the respondent has not accepted liability for any condition other than musculo-ligamentous neck injury. She pointed out that much of the evidence led in this case – about fractures to the teeth, for example – had nothing to do with the condition referred to in the reviewable decisions. Ms Ford also argued the respondent has not made a reviewable decision with respect to a claim for household assistance under s 29 apart from the claim for assistance with respect to lawn-mowing. At the hearing, the applicant confirmed she was seeking more generous household assistance.

12.     Mr Johnson, for the applicant, pointed out Comcare has in fact been paying Ms Brackenreg’s medical expenses in relation to a range of conditions until comparatively recently. He says Comcare apparently determined each of those payments was appropriate when it was made, and he questions why Comcare has changed its mind. Ms Ford suggested that if Comcare had been generous in the past, it was not obliged to continue making the payments if it concluded on a proper reading of the material that it was not in fact obliged to make the payments.

13. Mr Johnson also argued in his written submissions that the narrow scope of the injuries recognised in the reviewable decision was not fatal to his client’s case because s 16 merely required that there be an injury – and he says the Tribunal is entitled to accept a different definition of the injury than the one settled on in 1984.

the legislation

14. The applicant has sought payment in respect of medical expenses pursuant to s 16 of the SRC Act. Section 16(1) provides:

Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

15. The right to compensation under s 16 is only available where an employee suffers an injury (within the meaning of s 4) that arises out of or in the course of employment (within the meaning of s 6), and liability is accepted in respect of that condition or injury under s 14.

the compensable injury

16. In this case, the decision with respect to liability made on 30 April 1984 defines the injury in question as "musculo-ligamentous neck injury". As Deputy President Forgie observed, that is the only condition referred to in the decision accepting liability under s 14. Subsequent decisions under other provisions that describe the condition in less precise terms (eg, the reference in the reviewable decision dated 29 September 2003 to “orthopaedic, neurologic or psychiatric conditions”) do not amount to a decision to re-define the condition for the purpose of s 14. It follows that I do not accept Mr Johnson’s invitation to read the word injury in s 16 without regard to the description applied to that injury when liability was accepted under s 14.

17. I acknowledge Comcare has met a wide range of expenses that are not clearly attributable to the musculo-ligamentous neck injury referred to in the 1984 definition. I do not accept that Comcare is somehow bound by that conduct to continue making payments if they were not in fact authorised to do so under the SRC Act.

18.     It is therefore necessary for me to consider whether the applicant continues to suffer from the effects of a "musculo-ligamentous neck injury” or from any condition that is a sequelae of that condition. Any claim that she has in respect of other conditions that cannot be attributable to musculo-ligamentous neck injury must be submitted to Comcare for consideration under s 14.

the medical evidence

19.     The Tribunal was provided with evidence of the applicant’s medical history dating back to the 1970s. Some of the evidence relates to the applicant’s teeth. Tooth damage clearly falls outside the definition of “musculo-ligamentous neck injury.” But there is a variety of other conditions claimed, including a syrinx.

20.     The respondent referred to a number of medical reports suggesting the applicant’s symptoms attributable to musculo-ligamentous injury to the neck had subsided soon after the accident.

21.     I have reviewed the oral evidence and the medical reports that were tendered as exhibits, and the reports contained in the T documents. They are voluminous: they involve some 36 individuals (doctors, dentists, psychologists, occupational therapists and physiotherapists) who between them have provided over 65 reports of various kinds. None of those reports suggests the applicant has ongoing problems associated with or attributable to a musculo-ligamentous neck injury. The applicant may have other ongoing problems, but that is not an issue for the Tribunal in these proceedings.

conclusion

22.     The applicant’s claim in these proceedings can only succeed if she can attribute her ongoing medical condition (and thus her need for medical attention, medication and household assistance) to the original injury she sustained on her way to work. Comcare’s predecessor accepted liability for a musculo-ligamentous neck injury following that accident. Comcare maintains it can only be held responsible for expenses flowing from that finding of liability. It has never resiled from the original finding notwithstanding loose talk in some of the documents about a wider range of ailments and the fact Comcare has paid many of the applicant’s expenses that are plainly not connected with her accepted condition.

23.     I am satisfied the applicant’s ongoing medical problems are not attributable to (or sequelae of) the musculo-ligamentous neck injury she sustained in 1984. Unless Comcare (or the Tribunal on review) changes the definition of the condition for which it accepts liability so it embraces some of the conditions described in the applicant’s various medical reports, the applicant cannot succeed in her claim for further compensation. The decisions under review are therefore affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:     Sam J Appleton

Dates of Hearing  27-28 June 2005
Date of Decision  15 November 2005
The applicant was represented by Mr Johnson of Counsel.
The respondent was represented by Ms Ford of Counsel.