Brackenreg v Comcare

Case [2010] FCA 724

FEDERAL COURT OF AUSTRALIA

Brackenreg v Comcare [2010] FCA 724

Citation: Brackenreg v Comcare [2010] FCA 724
Appeal from: Brackenreg v Comcare [2009] AATA 819
Parties: DEBORAH BRACKENREG v COMCARE
File number: NTD 20 of 2009
Judge: MANSFIELD J
Date of judgment: 13 July 2010
Catchwords:

WORKERS COMPENSATION – appeal from decision of Administrative Appeals Tribunal -– appellant suffered compensable injuries when involved in motor vehicle accident whether a number of other conditions were also caused by that accident so as to entitle appellant to compensation in respect of them – where Comcare had paid medical expenses in respect of them, whether Comcare had onus of proving they were not compensable – Tribunal did not fail to consider submissions seriously advanced by the appellant that were relevant to the issues – Tribunal did not fail to consider credible evidence – no error of law made out – appeal dismissed

EVIDENCE – there is no legal or evidential onus of proof on the parties – Tribunal correctly applied practical onus  
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)

Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 63(1)(b)
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 29, 62, 124, 137
Public Service Act 1922 (Cth)

Migration Act 1958 (Cth) s 476

Cases cited:

Brackenreg v Comcare Australia (1995) 56 FCR 335 cited
Brackenreg v Comcare [2005] AATA 1121 cited
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 followed
Hannaford v Telstra Corporation Ltd (2005) 41 AAR 156 cited
Lees v Comcare (1999) 29 AAR 350 cited
McDonald v Director-General of Social Security (1984) 1 FCR 354 discussed
Canute v Comcare (2005) 226 CLR 535 cited
Commonwealth v Muratore (1978) 141 CLR 296 considered
Commonwealth v Borg [1991] FCA 710 considered
Phillips v The Commonwealth (1964) 110 CLR 347 cited
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 cited
Comcare v Nichols [1999] FCA 209 cited
Power v Comcare (1998) 89 FCR 514 cited
Lang v Comcare (2007) 94 ALD 141 cited
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 applied
Industry Research and Development Board v Bridgestone (2004) 136 FCR 47 cited
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 cited
Date of hearing: 20 April 2010
Date of last submissions: 14 May 2010
Place: Adelaide (via video link with Darwin)
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 93
Counsel for the Appellant: M Johnson
Solicitor for the Appellant: Robert Welfare Barristers & Solicitors
Counsel for the Respondent: B Dubé
Solicitor for the Appellant: Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

NTD 20 of 2009
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

DEBORAH BRACKENREG
Appellant
AND:

COMCARE
Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

13 JULY 2010

WHERE MADE:

ADELAIDE (VIA VIDEO LINK WITH DARWIN)

THE COURT ORDERS THAT:

1.The appellant have leave to amend the grounds of appeal by adding as ground…

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AGLC
Brackenreg v Comcare [2010] FCA 724
Case
[2010] FCA 724
Decision Date

CaseChat Overview and Summary

The appeal in Brackenreg v Comcare involved the appellant's claim for compensation for various conditions and symptoms she argued resulted from a compensable motor vehicle accident she had in 1984. The dispute centred on whether certain medical conditions and symptoms she experienced were caused by the accident or by other causes. The matter was heard and determined by the Administrative Appeals Tribunal (the Tribunal), which dismissed the appellant’s claim in respect of several conditions, but allowed her claim in respect of her temporo-mandibular joint dysfunction and the cost of an occlusal splint. The appellant sought to appeal the Tribunal's decision to the Federal Court of Australia.

The key legal issues the court had to decide included whether the Tribunal had failed to consider relevant submissions made by the appellant, whether it had failed to consider credible evidence, and if it had made any error of law in determining the appellant's entitlements. The court examined the submissions made by the appellant and the evidence presented before the Tribunal. It found that the Tribunal had not failed to consider the submissions or evidence seriously, and it had not made any error of law. The court held that there was no legal or evidential onus of proof on the parties, and the Tribunal had correctly applied a practical onus of proof. The court concluded that the appellant had not demonstrated any error on the part of the Tribunal that would warrant the appeal being upheld.

In its reasoning, the court noted that the statutory scheme for workers' compensation allows for progressive and evolving decision-making, which is consistent with ongoing review of relief or entitlements. The court highlighted that the scheme reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of liability. The court further held that the Tribunal was empowered to make subsequent findings of fact in relation to the circumstances of the case, and it had done so correctly in this matter.

Ultimately, the court dismissed the appeal and ordered that the appellant pay the respondent’s costs of the application. The court allowed the appellant leave to amend the grounds of appeal to include an additional ground relating to the Tribunal's view of the law of causation in workers’ compensation. However, this additional ground did not change the outcome of the appeal.

Orders

Orders of the court

1. The appellant have leave to amend the grounds of appeal by adding as ground 2.6 the following:

The learned Senior Member erred in law in proceeding on an erroneous view of the law of causation in workers’ compensation, to find that the temporo-mandibular joint dysfunction condition resulted from the injury, but that the psychiatric disorder, gastric condition and headaches (on the evidence caused in part at least by the temporo-mandibular joint dysfunction condition) did not so result.

2. The application by way of appeal is dismissed.

3. The appellant pay to the respondent its costs of the application.

Note:

Background

Background to the litigation

This is an application by way of appeal on a question of law under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). It concerns the appellant’s claimed entitlement to medical and like expenses in respect of a variety of conditions or symptoms. The background is complex.BACKGROUND The appellant suffered a compensable injury or injuries when involved in a motor car accident on her way to work on 7 March 1984 (the car accident). She sought treatment at the Royal Darwin Hospital. She is recorded there as having complained of pain in her neck, her back, and her right shoulder. She then claimed compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). She described her injuries as whiplash, sprained shoulder and broken teeth. She was paid compensation both for incapacity and for medical expenses. It appears the respondent identified her injury as “musculo-ligamentous neck injury”, and accepted liability on that basis. The appellant did not recover well from the injuries sustained in the car accident. She received compensation under the 1971 Act and then under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the 1988 Act) for ongoing incapacity and her medical expenses. Along the time path, in April 1987 she was retired from her employment on medical grounds under the Public Service Act 1922 (Cth). In 1990 the issue arose as to whether the appellant was still suffering the effects of the car accident at all. Ultimately, on 17 February 1993 the respondent determined that the appellant was no longer suffering from the effects of the car accident; any ongoing symptoms she was experiencing were attributable to some other cause. It also determined that she was capable of undertaking employment which was reasonably available to her. That decision was affirmed on review by the Administrative Appeals Tribunal (the Tribunal) on 23 November 1993. However, its decision was set aside by this Court: Brackenreg v Comcare Australia (1995) 56 FCR 335. On its subsequent review, the Tribunal by agreement restored the appellant’s entitlement to compensation. Subsequently, on 6 December 1995, the respondent determined that the appellant’s ongoing entitlement to weekly payments for incapacity from injuries sustained in the car accident be redeemed pursuant to s 137 of the 1988 Act by payment of a lump sum. The question of her ongoing entitlement to compensation by way of medical and like expenses as a result of injuries sustained in the car accident has remained an issue. It has been the subject of a number of determinations. Relevantly, for the present appeal, on 23 June 2003, the respondent again decided that she no longer suffered from the effects of the compensable injury sustained in the car accident. The respondent said it would no longer be liable for any medical expenses under s 16 of the 1988 Act. It also said that, for the same reason, it would no longer be liable for the expense of any household services under s 29 of the 1988 Act. That decision was affirmed on internal review on 29 September 2003.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

That description of the conditions the subject of those decisions does not directly correspond with the list set out in [11] above. In the course of submissions, nothing appeared to turn on those differences. No question of the jurisdiction of the Tribunal arose before the Tribunal or on this Appeal. Nor does anything appear to turn on any apparent overlap between symptoms which might be attributable to the accepted musculo-ligamentous neck strain sustained in the car accident, apparently excluded from further consideration, by the agreement referred to in [10] above and other ongoing symptoms claimed to be suffered by the appellant. As appears below, the respondent did further consider if that injury continued to result in symptoms and to the need for ongoing medical expenses or household assistance. THE DECISIONS REVIEWED BY THE BOARD The four decisions referred to in [12] were reviewed together by the Tribunal. It identified eight issues raised by those review applications as follows:Issue 1: Has Ms Brackenreg recovered from the compensable injury?Issue 2: Is Comcare liable to Ms Brackenreg’s “degeneration of the cervical spine” (including at C3/4, C5/6 and C6/7)?Issue 3: Is Comcare liable for a “syrinx condition”?Issue 4: Is Comcare liable for “headaches”?Issue 5: Is Comcare liable for Ms Brackenreg’s gastritis condition?Issue 6: Is Comcare liable for Ms Brackenreg’s psychiatric condition?Issue 7: Is Comcare liable for “temporo-mandibular joint dysfunction”?Issue 8: Is Comcare liable to pay medical expenses for an occlusal mouth splint? There is no submission that those issues were not appropriate ones to address. The reference to “compensable injury” in Issue 1 is that as accepted in 1984 by the respondent, namely the musculo-ligamentous neck injury. There is, however, a contention that they were not comprehensive of the issues raised. That contention is considered below. The Tribunal by decision of 23 October 2009, answered Issues 1 to 6 in the negative, and so on each of those review applications (arising from the decisions of 9 January 2007 or 15 October 2007, 15 March 2007 or 16 October 2007, and 22 October 2007 or 22 January 2008), it affirmed the decision of the respondent. The Tribunal answered Issues 7 and 8 affirmatively. On that review application (arising from the decision of 23 June 2008 or 17 November 2008), it set aside that decision and substituted a decision that the respondent is liable to pay compensation to the appellant for her “tempo-romandibular” (sic, temporo-mandibular) joint dysfunction, and under s 16 of the 1988 Act for the cost of an occlusal splint. There is no appeal from that decision. This appeal is from the decisions and orders of the Tribunal referred to in [16] above.THE TRIBUNAL’S REASONS In reaching its decisions, the Tribunal rejected the respondent’s claim that the car accident was minor. It also rejected its contention that the Tribunal should adopt a “blanket” adverse view as to the appellant’s credit. The Tribunal noted that, since a fall from a horse in 1991, she accepted that she has an unreliable memory. It said she had limited ability to recall details and the sequences of events. It said it gained little assistance from her oral evidence because it was not confident of her ability to recall relevant events or symptoms. However, it remarked that there was ample medical evidence provided a sound basis for conclusions to be drawn.

Ratio Decidendi

Legal Principle Established

Those two matters were based upon Comcare having accepted liability for medical and like expenses in the past incurred in respect of psychological and psychiatric treatment and household help expenses, and in respect of the syrinx condition and for degenerative changes in the cervical spine.CONSIDERATION The matters raised by asserted errors 2.3 and 2.5 were said to flow from the way the Tribunal addressed what it called Issue 1. In substance, it was argued that because Comcare had accepted liability for medical and like expenses in the past incurred in respect of symptoms other than those from the musculo-ligamentous neck strain, it had redefined the injury which it had accepted as compensable, and (by inference) it could no longer dispute liability to pay compensation in respect of those conditions. Before addressing that contention, I note that the submissions of the appellant did not suggest that the claimed entitlement of the appellant to compensation the subject of this appeal depended on whether the provisions of the 1971 Act or the 1988 Act were applied. The transitional provisions in the 1988 Act provide that, in respect of injuries sustained before its commencement, compensation is payable under the 1988 Act as if it were payable under the 1971 Act: see in particular s 124 of the 1988 Act. Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 concerned an issue similar to that now raised by the appellant. The employer had accepted liability to pay compensation to its employee in respect of the disease Ross River fever, and duly paid compensation. Then it found out that the employee was not suffering from Ross River fever, but a different disease which was not work-related. It decided it was not liable to pay any further compensation. That decision was affirmed on review by the Tribunal. On appeal, it was argued that the Tribunal could not affirm the decision because it did not formally have before it the initial decision to accept the claim, and so it could not go behind that initial decision by making a finding inconsistent with it. That point was successful at first instance: Hannaford v Telstra Corporation Ltd (2005) 41 AAR 156, but that decision was reversed on appeal. Heerey J (with whom Dowsett J agreed) said at [8] that the 1988 Act does not mean that a decision to accept a claim “permanently enshrines” every finding of fact on which a determination is made. His Honour pointed out that Part VI of the 1988 Act specifically empowers the respondent to reconsider its earlier decisions, at any time, including any earlier finding of fact, and that the “modern, practical statutory scheme for the compensation of injured workers” allowed the Tribunal to revisit the finding whether the employee had suffered from Ross River fever as originally diagnosed. Conti J (with whom both Heerey and Dowsett JJ generally agreed) after reviewing the statutory scheme in detail and earlier authorities on the issue, said at [57]:In my opinion, it should be concluded, upon the correct construction of the SRC Act [the 1988 Act], and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) “[s]ubject to this Part” are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.