Brackenreg and Comcare

[2005] AATA 88

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 88

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No  D2003/34, D2004/13

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEBORAH BRACKENREG

Applicant

And  COMCARE

Respondent

DECISION

Tribunal Senior Member McCabe

Date28 January 2005

PlaceBrisbane

Decision

1.     The stay order of 11 November 2003 is dissolved; and

2.     The applicant will be the first to present her case to the Tribunal at the hearing.

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

Senior Member McCabe

CATCHWORDS

PRACTICE AND PROCEDURE – Application for review – procedure at hearing – applicant to proceed first
COMPENSATION – Stay of decision – stay previously granted - grounds for granting stay - stay no longer necessary to secure effective hearing

Safety, Compensation and Rehabilitation Act 1988, s 16

Bushell v Repatriation Commission (1992) 175 CLR 408
Commonwealth v Muratore (1978) 141 CLR 296

REASONS FOR DECISION

28 January 2005

1.Deborah Brackenreg was injured in a car accident in the Northern Territory in 1984. She sustained injuries to her neck in particular and was partially incapacitated. The applicant’s compensation claimed was settled on the basis she would receive weekly payments. (The applicant was subsequently paid a lump sum in 1995. She does not continue to receive compensation for incapacity.) She was also entitled to receive compensation for reasonable medical treatment pursuant to s 16 of the Safety Compensation and Rehabilitation Act 1988.

2.The applicant continues to receive treatment for a range of ailments which she says arose out of her car accident. The list of conditions is set out in a letter from the applicant’s solicitor dated 16 April 2004. Comcare says many of these conditions are unrelated to the injury, which was characterised as whip-lash, or musculo-ligamentous injury. Comcare determined (in a letter to the applicant dated 23 June 2003):

“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.”

3.Comcare was asked to reconsider its decision. The reconsideration decision dated 29 September 2003 (at document T195) 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.”

4.The applicant has brought the matter before the Tribunal. She asked the Tribunal to stay the decision so that payments would continue while the matter was being considered. A stay was granted under s 41(2) of the Administrative Appeals Tribunal Act 1975 pending the hearing. The reasons for the decision are set out in Brackenreg and Comcare [2003] AATA 1358.

5.There has been considerable delay in obtaining a hearing. That is partly attributable to the fact the applicant resides in Darwin, and she has had difficulty obtaining the medical reports she says she requires. The matter was listed for the November circuit last year. It was not ready and an adjournment was granted. At that time, the applicant’s…