Kuchar and Comcare (Compensation)

[2017] AATA 839

Kuchar and Comcare (Compensation) [2017] AATA 839 (7 June 2017)

Division:GENERAL DIVISION

File Number(s):2017/2471      

Re:Zofia Kuchar

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:7 June 2017

Place:Sydney

The application for a stay is refused.

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Senior Member A Poljak

CATCHWORDS

ADMINISTRATIVE – stay application – s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) – merits of substantive matter – hardship to the applicant – cessation of massage therapy – chronic pain syndrome – passivity – stay application refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)

CASES

Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114

Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065

REASONS FOR DECISION

Senior Member A Poljak

7 June 2017

1. The applicant has an accepted claim for ‘displacement of intervertebral disc – lumbar’ with the date of injury of 21 August 2008. ‘Planter fasciitis’ was accepted as a secondary condition with a date of injury of 1 July 2010.

2. On 27 February 2017, Comcare determined that it would not pay for any further massage therapy under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”). At the request of the applicant, Comcare undertook an independent review of this decision.

3. On 4 April 2017, the Review Officer determined that massage therapy was not a reasonable medical treatment for the applicant to continue in relation to the accepted condition of ‘displacement on intervertebral disc – lumbar’ and affirmed Comcare’s earlier determination of 27 February 2017 (“the decision”). The applicant has applied to the Tribunal for review of this decision (“the substantive proceedings”).

4. These proceedings concern a request by the applicant for a stay of the operation and effect of the decision until determination of the substantive proceedings. The effect of which would make Comcare liable to pay for further massage therapy under s 16 of the SRC Act, until further order of the Tribunal.

   THE TRIBUNAL’S POWER TO MAKE A STAY ORDER

5. A decision that is subject to review has full effect and operation unless and until the Tribunal makes an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to stay the operation and effect of the decision. Such an order may be made if the Tribunal is “of the opinion that it is desirable to do so after taking into account the interests of any person who may be affected by the review…as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.” It is not intended to simply protect an applicant from the consequences of a decision.

6. In Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065 at [6], the Tribunal said:

   “The decision whether to grant a Stay is entirely discretionary.  It follows that an applicant does not have an automatic right to a Stay.  Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise.  Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions.  In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement.” (Emphasis added)

7. There are numerous authorities setting out a non-exhaustive set of factors which may be taken into account when determining an application for a stay order. In Re Scott and Australian Securities and Investments Commission [2009] AATA 798; (2009) 51 AAR 114 at [4], the Tribunal summarised the well-established relevant factors and principles which may be considered when determining a stay application. They are:

   “1.         The prospects of success.

   2.        The consequence for the applicant of the refusal of a stay.

   3.        The public interest.

   4.The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.

   5.Whether the application for review would be rendered nugatory if a stay were not granted.

   6.Other matters that are relevant, amongst which I would include the length of time that the ban has already been in place and the gap between today and the hearing of the application.”

8. These factors are generally the touchstone against which consideration of stay applications are to be approached.

   CONSIDERATION

9. The applicant contends that massage therapy helps her manage her long term chronic pain and gives her a lot of relief from symptoms in her back and feet. Since November 2008, the applicant has undergone 387 sessions of massage therapy which were paid by Comcare.

10. On 13 December 2016, the applicant was assessed by Dr Dwight Dowda, a consultant occupational physician. In his report dated 21 December 2016,  Dr Dowda noted that the ongoing sessions of massage therapy were at odds with the recommendations made by the ADAPT Pain Management Program (attended by the applicant in 2011). Particularly the recommendation that the applicant should avoid passive therapies which have no evidence of lasting effectiveness and risk reinforcing passivity.

11. Comparatively, in Dr Selim’s most recent medical certificate dated 4 February 2017, he recommended ongoing massage therapy and in a report dated 4 February 2017, Dr Selim noted that massage therapy was part of the applicant’s current rehabilitation program.

12. While it is neither appropriate nor necessary to determine the substantive matter in these interlocutory proceedings, it is helpful to form a view about the prospects. There is a vast amount of medical evidence and documentation filed in the substantive proceedings and on a cursory view, the applicant has some prospects of success. In reaching this view, I have taken into account Comcare’s acceptance of liability for the injury; the fact that Comcare has paid for massage therapy between November 2008 to February 2017; and that further evidence as to the reasonableness of such treatment continuing may still be obtained and provided at the hearing of the substantive matter.

13. While prospects are a relevant factor when considering a stay application, the dominant factor to be determined in the circumstances of these interlocutory proceedings, is the potential hardship to the applicant.

14. In regards to the consequences for the applicant, she advised at hearing that her symptoms may be exacerbated if she stops receiving her regular weekly massage therapy. The applicant said that she could pay for the massage treatment herself if her request for a stay was refused. There is no evidence before me of financial hardship, so I accept that the applicant can fund her treatment until final determination of the substantive proceedings. Such a course would mean that if the applicant is ultimately successful, she could seek reimbursement from Comcare for massage therapy she has undertaken and self-funded since 27 February 2017.

15. On the other hand, if a stay is granted and the applicant is ultimately unsuccessful in the substantive proceedings, she would be liable to pay back to Comcare moneys paid for massage therapy undertaken since 27 February 2017. In my mind, this is a less than desirable position for Comcare and for the applicant to find herself in.

16. There is no evidence before me to suggest that the review application would be rendered nugatory if the stay order was refused.

    DECISION

17. Having taken into account the factors advanced by both the applicant and respondent, I have reached the view that on balance, it is not desirable to order a stay under s 41(2) of the AAT Act.

18. The application for a stay is refused.

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 7 June 2017

Date of hearing:	30 May 2017
Applicant:	In person
Solicitors for the Respondent:	Mr P Lehmann, Lehmann Snell Lawyers