Sarles and Comcare - [2007] AATA 1604

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1604
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200500063

GENERAL ADMINISTRATIVE DIVISION )

Re SUZANNE SARLES

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President S D Hotop
Dr D Weerasooriya, Member
Date30 July 2007
PlacePerth

Decision
The Tribunal sets aside the reviewable decision of the respondent, dated 24 July 2003, and, in substitution therefor, decides:

· from 10 February 2003 to the present date, and as at the present date, the respondent has not been, and is not, liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation to the applicant in respect of reflex sympathetic dystrophy or complex regional pain syndrome type I or any other physical ailment;

· from 10 February 2003 to the present date, and as at the present date, the respondent has been, and is, liable under s 14(1) of the SRC Act to pay compensation, in accordance with that Act, to the applicant in respect of the following mental injuries, namely, Substance (Opiate) Dependence and Pain Disorder;

· from 10 February 2003 to the present date, and as at the present date, the respondent has been, and is, liable to pay compensation to the applicant in accordance with s 19 of the SRC Act on the basis that she has been throughout that period, and continues to be, partially incapacitated for work, within the meaning of s 4(9)(b) of the SRC Act; and

· the respondent is liable, pursuant to s 16(1) of the SRC Act, to pay compensation to the applicant in respect of the cost of morphine (up to 220 mg per day) and methadone (up to 20 mg per day) medication obtained by the applicant in the period from 10 February 2003 to the present date, and in respect of the cost of reasonable medical treatment obtained by her in relation to her Substance (Opiate) Dependence and Pain Disorder.

Either party may make an application in relation to the costs of these proceedings within 14 days of the date of this decision. If no such application is made, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.

...........[Sgd S D Hotop]..........
Deputy President

CATCHWORDS
COMPENSATION – Commonwealth employees – applicant employed by Commonwealth Bank – in course of employment applicant suffered soft tissue injury in 1990 and subsequent associated reflex sympathetic dystrophy or complex regional pain syndrome type I – respondent accepted liability to pay compensation to applicant – applicant thereafter continued to suffer pain symptoms – applicant took morphine for pain from 1992 – respondent ceased compensation payments to applicant in 2003 – applicant continues to suffer pain symptoms – applicant no longer suffering from reflex sympathetic dystrophy or complex regional pain syndrome type I – applicant suffers from Substance (Opiate) Dependence and Pain Disorder – applicant's ailments…

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 Sarles and Comcare

Details

AGLC: Sarles and Comcare [2007] AATA 1604
Case: [2007] AATA 1604
Decision Date: 30 July 2007

CaseChat Overview and Summary

In the case before the Administrative Appeals Tribunal, the applicant, Sarles, sought compensation from Comcare, the respondent, for ongoing injuries sustained during her employment with the Commonwealth Bank. Sarles suffered a soft tissue injury in 1990 and subsequently developed reflex sympathetic dystrophy or complex regional pain syndrome type I. Comcare accepted liability for compensation but ceased payments in 2003, deeming the applicant's conditions to be stable. Sarles continued to experience pain symptoms and was diagnosed with Substance (Opiate) Dependence and Pain Disorder. The Tribunal was tasked with determining whether Comcare was liable for compensation related to the applicant's ongoing mental health conditions and incapacity for work.

The central legal issues in this case revolved around the applicability of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to the applicant's current mental health conditions. The Tribunal had to determine whether these conditions were compensable injuries under the Act and whether the applicant was partially incapacitated for work. Additionally, the Tribunal needed to address whether the respondent was liable for the cost of reasonable medical treatment and medication for the applicant’s mental health conditions.

The Tribunal found that, while the applicant was no longer suffering from reflex sympathetic dystrophy or complex regional pain syndrome type I, she did suffer from Substance (Opiate) Dependence and Pain Disorder. These conditions were mental in nature and were contributed to materially by her employment with the Commonwealth Bank. Consequently, Comcare was liable to pay compensation to the applicant for these mental injuries. Furthermore, the Tribunal concluded that the applicant was partially incapacitated for work due to her mental injuries, making Comcare liable for compensation for incapacity for work. Additionally, the respondent was liable to cover the cost of the applicant's reasonable medical treatment and medication related to her mental health conditions.

In light of the findings, the Tribunal set aside the reviewable decision made by Comcare on 24 July 2003 and ordered that Comcare was not liable to pay compensation for any physical ailments but was liable to compensate the applicant for her mental injuries, incapacity for work, and the costs of related medical treatment and medication. The Tribunal also noted that if no application for costs was made within 14 days of the decision, Comcare would be responsible for the applicant’s incurred costs.

Orders

Orders of the court

The Tribunal sets aside the reviewable decision of the respondent, dated 24 July 2003, and, in substitution therefor, decides:

· from 10 February 2003 to the present date, and as at the present date, the respondent has not been, and is not, liable under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) to pay compensation to the applicant in respect of reflex sympathetic dystrophy or complex regional pain syndrome type I or any other physical ailment;

· from 10 February 2003 to the present date, and as at the present date, the respondent has been, and is, liable under s 14(1) of the SRC Act to pay compensation, in accordance with that Act, to the applicant in respect of the following mental injuries, namely, Substance (Opiate) Dependence and Pain Disorder;

· from 10 February 2003 to the present date, and as at the present date, the respondent has been, and is, liable to pay compensation to the applicant in accordance with s 19 of the SRC Act on the basis that she has been throughout that period, and continues to be, partially incapacitated for work, within the meaning of s 4(9)(b) of the SRC Act; and

· the respondent is liable, pursuant to s 16(1) of the SRC Act, to pay compensation to the applicant in respect of the cost of morphine (up to 220 mg per day) and methadone (up to 20 mg per day) medication obtained by the applicant in the period from 10 February 2003 to the present date, and in respect of the cost of reasonable medical treatment obtained by her in relation to her Substance (Opiate) Dependence and Pain Disorder.

Either party may make an application in relation to the costs of these proceedings within 14 days of the date of this decision. If no such application is made, the Tribunal orders, pursuant to s 67(8) of the SRC Act, that the costs of these proceedings incurred by the applicant be paid by the respondent.

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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