Mitchell and Comcare (Compensation) - [2021] AATA 610

Mitchell and Comcare (Compensation) [2021] AATA 610 (23 March 2021)
Division:GENERAL DIVISION
File Number: 2017/3827
Re:Sonia Mitchell
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:23 March 2021
Place:Melbourne

The Tribunal affirms the decision under review.
..............[sgd]..........................................................
R Cameron, Senior Member
Catchwords
COMPENSATION – whether Applicant still suffers from previously accepted injury – reasonable treatment – chiropractic and massage treatment – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555
Bayani and Australian Postal Corporation [2015] AATA 342
Comcare v Holt (2007) 94 ALD 576
Blackwell and Comcare [2017] AATA 1357
Jorgensen and Commonwealth (1990) 23 ALD 321
Rana v Military Rehabilitation and Compensation Commission (2008) 104 ALD 595
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Topping and Comcare [2015] AATA 525
REASONS FOR DECISION
R Cameron, Senior Member
Xx March 2021
INTRODUCTION

The Applicant seeks review of a decision made by a Review Officer of the Respondent on 4 May 2017 (“the reviewable decision”). The reviewable decision made two findings as follows:
(a)That it was reasonable to accept liability for one treatment per fortnight for either massage, chiropractic or acupuncture in respect of a compensable injury suffered by the Applicant for the period 8 March 2017 until 10 May 2017; and
(b)that as at 10 May 2017 chiropractic, massage and acupuncture treatment were not reasonable medical treatment for her compensable conditions.[1]
[1] In her Statement of Facts, Issues and Contentions filed on 21 May 2019 the Applicant stated the matter had come about because one new case manager interpreted the word "either" differently to the previous two case managers and years of previous determinations. The Tribunal finds the approach adopted by the Respondent to be the appropriate identification of relevant issues for determination by it.
ISSUES FOR DETERMINATION BY THE TRIBUNAL
The Respondent has in its Statement of Issues, Facts and Contentions identified three issues for determination by the Tribunal. The Applicant did not cavil with the issues identified in the Respondent’s document. The Tribunal has proceeded to determine the matter according to these issues as identified:
(a)The first issue is whether the Applicant continues to suffer the effects of a compensable injury being the soft tissue injury of lower back, neck, shoulder and both wrists sustained in a motor vehicle accident on 11 June 1997.
(b)The second issue is if she does continue to suffer the effects of the compensable injury is massage, chiropractic and/or acupuncture reasonable medical treatment in the circumstances to obtain in relation to such injury.[2]
(c)Thirdly, whether as at 10 May 2017 and presently, the Applicant is entitled to compensation under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”) for massage, chiropractic and/or acupuncture treatment in respect of the compensable injury.
[2] This formulation of the issue is in similar terms to that identified by the Applicant at page 122 of her reply submissions to…

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 Mitchell and Comcare (Compensation)

Details

AGLC: Mitchell and Comcare (Compensation) [2021] AATA 610
Case: [2021] AATA 610
Decision Date: 23 March 2021

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against a decision by Comcare. The dispute centred on whether the Applicant continued to suffer from an injury accepted as compensable, and whether certain treatments, specifically chiropractic and massage therapy, were reasonable and necessary for that injury. The decision was made by Senior Member R Cameron of the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether the Applicant still suffered from the previously accepted injury. Secondly, whether the chiropractic and massage treatments sought by the Applicant were reasonable and necessary in the circumstances.

The Tribunal's reasoning involved a critical assessment of the Applicant's evidence, which it found to be unreliable in certain aspects, particularly regarding the circumstances of the motor vehicle accident and the immediate aftermath. The Tribunal noted the Applicant's failure to report the accident to the police, despite an obligation to do so in Victoria when an injury occurs, and her inability to recall key details of the incident. The Tribunal also observed that the Applicant, despite representing herself and receiving considerable guidance, frequently diverted from presenting relevant evidence to focus on Comcare's conduct. Consequently, the Tribunal determined that the Applicant had not established that she continued to suffer from the accepted injury, nor that the proposed treatments were reasonable and necessary.

The Tribunal affirmed the decision under review, finding against the Applicant on the second and third issues.

Orders

Orders of the court

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Background

Background to the litigation

Whilst the Tribunal would not go so far as to describe the Applicant’s evidence as intrinsically unreliable, it does in certain circumstances consider that aspects of her evidence must be viewed with caution and on occasion rejected. More will be said about this in the course of these reasons.RELEVANT FACTSThe motor vehicle accident on 11 June 1997 and its immediate aftermath This matter evolved from a motor vehicle accident that took place on 11 June 1997, when a car that the Applicant was driving[11] collided with another vehicle at the intersection of De Havilland and Lower Dandenong Roads in Mordialloc. At the time of the collision her car was travelling at approximately 60 km/h, having slowed down from approximately 80 km/h when she was executing a right-hand turn. According to the claim form, as confirmed by evidence she gave in the witness box, traffic lights at that controlled intersection changed to amber just before she entered. She stated that she did not apply the brakes but merely took her foot off the accelerator. Whilst executing her turn in the intersection another vehicle, heading in the opposite direction, commenced moving; causing the right-hand corner of his vehicle to strike the right-hand corner of her vehicle. Her evidence was that her left hip was pinned to the seatbelt and her right hip was twisted. Under cross-examination she stated that her vehicle spun around as a result of the collision and simultaneously she blacked out. When probed about why she blacked out if she had not hit her head, she was unable to offer an explanation other than that she was in shock.[11] Under cross-examination the Applicant was unable to precisely recall the make of motor vehicle she was driving at the time of the accident. She speculated that it might have been a Hyundai. The Applicant’s car was not particularly badly damaged, with some damage to the right-hand corner. It was not a write-off. For instance, she gave evidence that there was no debris left on the road from the accident. There was such comparatively little damage that she then proceeded to complete her journey driving to work. When probed on why she continued to work given that she had blacked out and suffered other injuries, she repeated that she thought she was in shock and that the whole thing was very traumatic. Importantly, for the purposes of this application, she stated that she could not recall experiencing any symptoms such as pain after the accident. She also gave evidence that she had to go to work because she had a deadline; otherwise she would have gone home. Surprisingly, given that the Applicant blacked out as she said, emergency services were not called, and no report was made to the police even though she was injured.[12] The Tribunal cannot accept that she blacked out. At all times the Applicant has shown a heightened sense of protecting her interests, however that may be achieved. Placing matters “on the record” in case future reference or corroboration may be required, appear to be one of the hallmarks of her character. The Tribunal notes that a report was not made to the police in this case, even in the following days when she had the opportunity to compose herself, if she was, as she asserts, in shock and suffering from some heightened level of trauma. [12] It should be recalled that in the State of Victoria, there is an obligation on the parties to a motor car accident where someone has been injured to report it to the police.

Evidence

Evidence Before The Court

The Applicant, Dr Brazenor and Mr Papagoras gave oral evidence.PRELIMINARY OBSERVATIONS ON THE APPLICANT’S EVIDENCE AND CONDUCT OF THE APPLICATION It is appropriate to make some preliminary observations about the general tenor of the Applicant’s evidence. At the outset it should be observed that the Applicant at all times represented herself. As the Tribunal observed in its written reasons for reinstating this application, this case does provide an example of what does confront the Tribunal increasingly when presented with self-represented parties. Such occasions pose unique and difficult challenges. The conduct of the final hearing of this application which took place over several days, very much fell into that category. The Tribunal on several occasions explained in detail to the Applicant the format that would be adopted during the hearing. It explained to her what she was required to do in the various steps that were undertaken during the course of the hearing. This included the manner of conducting an opening, the manner of giving evidence-in-chief, the manner of and nature of cross-examination (this included the form of questions that are permissible), the nature and purpose of re-examination, and critically the distinction between giving evidence concerning facts that needs to be proven or are otherwise in dispute, and submissions, which of course serve a very different function. The Applicant is an intelligent woman. This was quite apparent from the level of detail when she prepared her case, the structure with which she assembled her documentary evidence and prepared written submissions, and when she turned her mind to it, her undoubted capacity to be an effective advocate for her own interests, including the advancement of her claim concerning the compensable injury, and indeed, the conduct of this case. Unfortunately, from time to time she did not, despite the guidance and latitude afforded to her by the Tribunal, conduct herself in a way that conformed with her obligations to provide assistance to it. This was regrettable. The Applicant on many occasions saw it as appropriate to devote much attention to the conduct of Comcare over many years in dealing with her several claims. She seemed to see the Tribunal’s function as some form of mini- enquiry into Comcare’s conduct of her claim, despite having it explained to her frequently that it was not. In many instances this approach was more of a priority for her, despite the Tribunal advising her to the contrary, rather than placing before the Tribunal appropriate evidence to enable the Tribunal to reach the correct and preferable decision in accordance with its obligations under the Administrative Appeals Tribunal Act 1975 (“AAT Act”). Additionally, at not insignificant inconvenience to the Tribunal and the Respondent, the Applicant was not prepared to proceed at the close of evidence. Written submissions were permitted to be lodged by both parties. The Applicant without the leave of the Tribunal attempted to introduce fresh evidence and in spite of the fact that she had ample time to prepare her case. Any material contained in her final submissions that constitutes fresh evidence will not be received by the Tribunal.[10] To permit the Applicant to do so would be unfair to the Respondent. This attempted introduction of fresh evidence was done despite the Applicant being advised on several occasions that all evidence must be submitted to the Tribunal prior to the close of her case. She also sought to introduce fresh evidence despite being informed on several occasions as to the nature and purpose of closing submissions. She consciously ignored the explanations given to her by the Tribunal despite obviously understanding what her obligations were. On that question, her submissions were in many instances discursive and unhelpful, frequently containing matters that are completely irrelevant to the questions for determination. Also, insofar as that material is irrelevant, it is not taken into account by the Tribunal.[10] Quite understandably, the Respondent objected to the Tribunal receiving any fresh evidence.

Decision

Reasons for decision

Therefore, the Tribunal determines the second and third issues against the Applicant.CONCLUSION AND DECISION By reason of the foregoing matters the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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