Ortega and Comcare

[2005] AATA 502

Administrative

Appeals

Tribunal

 

REASONS FOR DECISION [2005] AATA 502

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2004/4

GENERAL ADMINISTRATIVE DIVISION		)
Re		SONIA ORTEGA

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr J.W. Constance, Senior Member

Date6 May 2005

PlaceCanberra

Decision There be no order for the payment of the applicant’s costs pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

..............................................

CATCHWORDS

COMPENSATION – costs – reviewable decision contravenes principles set out in Oudyn and Rosillo – decision set aside – Tribunal decision did not benefit applicant as substantive issue between parties was liability for present and future treatment – applicant unsuccessful on substantive issue – costs discretionary under Safety, Rehabilitation and Compensation Act 1988 (Cth) – no costs order made

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 67(8)

Sonia Ortega and Comcare [2005] AATA 229

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

REASONS FOR DECISION

6 May 2005 Mr J.W. Constance, Senior Member

1. On 6 May 2005 I decided that there be no order for the payment of the applicant’s costs pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The respondent has requested a statement of the reasons for that decision.

Background

2.        Ms Ortega was injured in 1995 and Comcare accepted liability for this injury sometime prior to 10 December 1997.  The exact date of the acceptance does not appear from the documents before me.

3.        On 22 August 2002 Comcare determined that “on and from 20 August 2002, we are no longer liable to pay compensation for physiotherapy, massage therapy or hydrotherapy treatment”.[1]  This decision was affirmed by a Review Officer on 22 December 2003.[2]

[1] Exhibit R24.

[2] T-document T196.

4.        On 6 January 2004 Ms Ortega applied to the Tribunal for a review of the Review Officer’s decision.  Ms Ortega was legally represented throughout the proceedings before the Tribunal.

5.        The Statement of Issues filed on behalf of Ms Ortega on 25 February 2004 stated that the issues before the Tribunal were:

“1.Whether the Applicant requires any further treatment in respect of physiotherapy, massage therapy or hydrotherapy in respect of her accepted condition.

2.Whether Comcare is liable under s.16 of the Safety Rehabilitation and Compensation Act 1988 for relevant ongoing treatment expenses.”

6.        On 1 June 2004 Ms Ortega filed a Statement of Facts and Contentions in which her contentions were:

“1.That the Applicant requires further treatment consisting of physiotherapy, massage therapy and/or hydrotherapy in respect of her compensable injuries for the purpose of alleviating the symptoms associated with those injuries, ie improving incrementally her medical condition.

2.That treatments in the form of physiotherapy, massage therapy and/or hydrotherapy are reasonable within the meaning of Section 16 of the Safety Rehabilitation & Compensation Act and that accordingly, Comcare is liable to pay for this ongoing treatment.”

Decision on the merits

7.        The application was heard by me and at the conclusion of the hearing I was not satisfied that Ms Ortega had a need at that time for any of the stated treatments.  None of the medical practitioners called to give evidence, including Ms Ortega’s own practitioners, was of the view that such treatment would be of benefit to Ms Ortega.  Further, there were no outstanding claims for treatment expenses.

8.        The decision I made on 17 March 2005 was that the reviewable decision be set aside.  In substitution I decided that “as at the date of this decision Comcare is not liable to pay to Ms Ortega compensation in accordance with section 16 of the Safety, Rehabilitation and Compensation Act 1988 for physiotherapy, hydrotherapy and/or massage therapy.”[3]

[3] Sonia Ortega and Comcare [2005] AATA 229.

Statutory provision

9.        Section 67(8) of the Act provides that costs may be ordered in favour of the applicant if the Tribunal makes a decision “varying a reviewable decision in a manner favourable to the claimant” or “setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the applicant than the reviewable decision”. The provision is discretionary. 

Reasons for decision as to costs

10.      For the reasons stated in the Reasons for Decision of 17 March 2005, the decision under review had to be set aside as it was in breach of the principles in Australian Postal Corporation v Oudyn (2003) 73 ALD 659. However this was never an issue between the parties and was a defect which could have been rectified simply at any stage without the matter proceeding to a hearing.

11.      Ms Ortega obtained no benefit from the substituted decision.  It is clear from the documents filed on behalf of Ms Ortega, and from the submissions of her Counsel, that she was seeking some form of declaration that she be compensated for certain types of treatment if, and when, she required those treatments.  For the reasons set out in the earlier Reasons for Decision such a declaration is beyond the power of the Tribunal.

12.      In these circumstances it is not appropriate that there be any order as to the costs of the proceedings.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member

Signed:         .....................................................................................
  Associate (Chelsey Bell)

Date/s of Hearing  6 May 2005
Date of Decision  6 May 2005
Date written reasons released       31 May 2005
Counsel for the Applicant              Mr G. Lunney
Solicitor for the Applicant               Higgins Solicitors
Counsel for the Respondent          Ms E. Ford
Solicitor for the Respondent          Phillips Fox