Brackenreg and Comcare

[2003] AATA 1358

Administrative

Appeals

Tribunal

 

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

Date11 November 2003 

PlaceBrisbane

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…