Jenkins and Comcare - [2006] AATA 413

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 413
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/151

GENERAL ADMINISTRATIVE DIVISION )

Re BRONWYN JENKINS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date12 May 2006
PlaceCanberra

Decision
The decision under review is varied to the extent that, consistent with these reasons, Comcare’s liability to compensate the Applicant for medical treatment in relation to her compensable injury did not cease on 22 March 2005 and is presently ongoing.

Comcare is to pay the Applicant’s reasonable costs in these proceedings as agreed or taxed.

..............................................
Mr S. Webb, Member

CATCHWORDS
COMPENSATION - 1991 spinal injury - liability accepted - amplification of symptoms following childbirth in 1995 - diverse pain symptomatology - Tribunal decision 1999 compensable incapacity - cessation of compensation for incapacity and medical treatment 2005 - no claim for incapacity - ongoing effects of injury – decision varied
Safety, Rehabilitation and Compensation Act 1988 ss 4, 16, 19, 67
Administrative Appeals Tribunal Act 1975 s 33
Re Jenkins and Comcare [1999] AATA 338)
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Re Liu and Comcare (2004) 79 ALD 119
Re Lewis and Comcare [2000] AATA 158
Morales v Minister for Immigration and Multicultural Affairs (1998) 154 ALR 51
Re Quin and Australian Postal Corporation (1992) 15 AAR 519
Re Matusko and Australian Postal Corporation (1995) 21 AAR 9
Comcare v Watson (1997) 73 FCR 273
Bashar v Comcare (2002) 69 ALD 784
Re Lonsdale and Comcare (2004) 80 ALD 220
Re Popovic and Comcare (2000) 64 ALD 171
Re Websdale and Telstra Corporation Limited [2005] AATA 264
Re Chowdhary and Comcare [1998] AATA 13003
REASONS FOR DECISION

12 May 2006 Mr S. Webb, Member

1.      By this application Bronwyn Jenkins is seeking review of the decision made by Comcare, and affirmed by an Independent Review Officer, to cease payment of compensation for incapacity and medical treatment expenses in relation to a work-related injury in 1991.
2.      The matter came on for hearing in Canberra on 3 and 4 May 2006. Mrs Jenkins was represented by Mr Lunney, counsel, and Comcare by Ms Walker, counsel. Mrs Jenkins, Dr D. McGrath, Dr M. Wearne and Dr N. McGill gave oral evidence. Materials were tendered and labelled during the hearing.
factual context
3. It is not in dispute that Mrs Jenkins was injured at work when she fell from a stool on 19 November 1991. She was employed as a Level 1 teacher at the Stirling College by the ACT Department of Education at the time. Comcare accepted liability to pay compensation in relation to that injury on 3 February 1992. By 1994 Mrs Jenkins was working 80 percent of her pre-injury hours and continued to do so until 1 March 1996, when she commenced maternity leave. On 19 April 1996 she gave birth to her daughter, Sarah, by caesarean section. Subsequently she suffered a significant amplification of her symptoms.
4.      On 21 May 1999 the Tribunal…

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 Jenkins and Comcare

Details

AGLC: Jenkins and Comcare [2006] AATA 413
Case: [2006] AATA 413
Decision Date: 12 May 2006

CaseChat Overview and Summary

The case of Jenkins and Comcare involved the plaintiff, who suffered a spinal injury in 1991, and the defendant, Comcare. The plaintiff had her symptoms exacerbated following childbirth in 1995 and experienced various pain-related symptoms. In 1999, the Tribunal ruled that the plaintiff's incapacity was compensable, but the cessation of compensation for incapacity and medical treatment was declared in 2005. The plaintiff did not claim incapacity, but instead sought compensation for the ongoing effects of the injury. The matter was brought before the court to review the decision made by the Tribunal.

The legal issues that the court was required to decide involved the ongoing effects of the compensable injury, the cessation of compensation, and the liability of Comcare for ongoing medical treatment. The court needed to consider the relevant provisions of the Safety, Rehabilitation and Compensation Act 1988, as well as the precedents set by previous cases such as Australian Postal Corporation v Oudyn, Re Liu and Comcare, and others. The court also had to examine the reasoning of the Tribunal in its 1999 decision, as well as the cessation of compensation in 2005.

The court found that the Tribunal's decision to cease compensation for incapacity and medical treatment was flawed, as it did not take into account the ongoing effects of the compensable injury. The court ruled that Comcare's liability to compensate the plaintiff for medical treatment in relation to her injury did not cease on 22 March 2005 and is presently ongoing. The court ordered that Comcare is to pay the plaintiff's reasonable costs in these proceedings as agreed or taxed.

The court's decision was based on the fact that the plaintiff's injury had ongoing effects that required medical treatment, and that the cessation of compensation in 2005 was not justified. The court held that the Tribunal's decision to cease compensation was not supported by the evidence and that Comcare's liability for ongoing medical treatment was not properly considered. The court's decision ensures that the plaintiff receives the compensation she is entitled to for the ongoing effects of her injury.

Orders

Orders of the court

The decision under review is varied to the extent that, consistent with these reasons, Comcare’s liability to compensate the Applicant for medical treatment in relation to her compensable injury did not cease on 22 March 2005 and is presently ongoing.

Comcare is to pay the Applicant’s reasonable costs in these proceedings as agreed or taxed.

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		BRONWYN JENKINS