Wirski and Comcare (Compensation)
[2016] AATA 461
•1 July 2016
Wirski and Comcare (Compensation) [2016] AATA 461 (1July 2016)
Division
GENERAL DIVISION
File Numbers
2016/1425 & 2016/1885
Re
Simon Wirski
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Dr C Kendall
Brigadier A G Warner, MemberDate 1 July 2016 Place Perth The applicant’s request for an order under section 41(2) of the Administrative Appeals Tribunal Act 1975 is refused.
..........[Sgd]..............................................................
Deputy President Dr C Kendall
CATCHWORDS
PRACTICE AND PROCEDURE – requests for order staying determinations ceasing treatments for compensable conditions – relevant factors – applicant has arguable case – financial hardship not sufficient to weigh in favour of granting stays – limited hardship other than financial – no evidence of urgent medical requirement for proposed arthroscopy – applicant’s requests for stay orders refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 41
CASES
Re Secretary, Department of Employment and Workplace Relations and Anastasiadis [2007] AATA 1065
Said and Secretary, Department of Social Services [2014] AATA 349
REASONS FOR DECISION
Deputy President Dr C Kendall
Brigadier AG Warner, Member1 July 2016
INTRODUCTION
On 21 March 2016, Mr Wirski lodged an application to stay a Comcare decision dated 8 March 2016. On the same day he lodged a substantive application for review of a Comcare decision dated 18 December 2015 (Application No. 2016/1425).
On 11 April 2016, Mr Wirski lodged an application to stay a Comcare decision dated 7 April 2016. On the same day he lodged a substantive application for review of Comcare’s decision affirming a determination dated 11 February 2016 (Application No. 2016/1885).
The Tribunal is asked to determine whether Mr Wirski should be granted stay orders in relation to the Comcare decisions under substantive review.
An interlocutory hearing in relation to these stay applications was conducted on 8 June 2016. Mr Wirski attended the hearing and was assisted by an interpreter, Mr Tokarczyk. The Tribunal notes that Mr Wirski required minimal translation assistance.
BACKGROUND
The background facts are detailed in the following timeline:
·7 September 1954 – Mr Wirski’s date of birth.
·12 and 16 February 1998 – Mr Wirski suffered injuries whilst employed as a veterinary officer with the Australian Quarantine Inspection Services. Comcare subsequently accepted liability to pay Mr Wirski compensation in respect to "injury to low back and left shoulder” suffered on 12 February, and "low back, right knee, right upper leg and right iliac crest injuries” suffered on16 February 1998. Shortly afterwards, Comcare also accepted liability for myalgia and myositis as secondary conditions of the compensable injuries suffered on 16 February 1998. (Exhibit R1 para 4)
·25 August 2003 – Mr Wirski was retired on medical grounds following periods of incapacity. (Exhibit R1 para 10)
·30 September 2011 – Mr Wirski underwent a right knee arthroscopy which was paid for by Comcare. (Exhibit R1 para 12)
·16 January 2014 – Comcare accepted liability for myofascial pain syndrome as a further secondary condition of the compensable injuries sustained on 16 February 1998. (Exhibit R1 para 13)
·21 November 2014 – By this time, Mr Wirski’s treatments were extended to include colonic hydrotherapy for the management of constipation reportedly brought on by antidepressant medications. (Exhibit R1 para 14)
·29 April 2015 – Dr J Hayes, rheumatologist, provided a report to Comcare stating in effect that:
-Mr Wirski was no longer suffering from the effects of the compensable conditions.
-The initial diagnosis of Mr Wirski’s injuries sustained in February 1998 had long been superseded by a chronic pain syndrome condition.
-The treatments sought by Mr Wirski have little curative benefits for patients with chronic pain syndrome associated with mental health problems.
-The main aim of Mr Wirski’s treatment should now be to stabilise his mental condition with psychiatric medications. (Exhibit R1 para 15)
·22 October 2015 – Comcare accepted liability to pay Mr Wirski compensation for the condition of chronic pain syndrome.
·18 December 2015 – On the basis of Dr Hayes’ evidence, Comcare determined that it was no longer liable to pay Mr Wirski’s medical expenses for chiropractic, osteopathy and podiatry treatments, massage and Rolfing, colonic washout and treatment related to constipation, treatment related to rashes/neurodermatitis, and Metamucil, Bisalax tablets, Magnesium Plus, Carnitine, Ultra Muscleze, Orudis and Voltaren Gel. (Exhibit R1 para 18)
·18 January 2016 – Medical report by Dr Robert M Flynn (updates a previous report dated 30 September 2015).
·1 February 2016 – Dr J Buelow, in a medical report, stated that a MRI revealed a recurrent horizontal tear of the medial meniscus and a small free edge radial tear in the lateral meniscus at the junction of body with posterior horn. Dr Buelow recommended that Mr Wirski undergo a further right knee arthroscopy to trim the meniscus. (Exhibit R1 para 15)
·11 February 2016 – Comcare determined, on the basis that Mr Wirski was no longer suffering the effects of the compensable conditions, that it was not liable to pay compensation in respect of a claim lodged by Mr Wirski on 1 February 2016 for a second right knee arthroscopy. Comcare affirmed this determination on 7 April 2016. (Exhibit R1 para 21-22).
·8 March 2016 – Comcare confirmed its determination of 18 December 2015. (Exhibit R1 para 20).
·7 April 2016 – Comcare affirmed its determination of 11 February 2016. (Exhibit R1 para 22)
RELEVANT LEGISLATION AND PRINCIPLES
The Tribunal can stay Comcare’s decisions as a result of the powers vested in it by s 41 of the AAT Act, which provides as follows:
41 Operation and implementation of a decision that is subject to review
(1) Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2) The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding ), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
As outlined by Deputy President Hotop in Said and Secretary, Department of Social Services [2014] AATA 439 (Said), section 41(1) of the Act provides that the making of an application to the Tribunal for review of a decision does not affect the operation or implementation of that decision. Subsection 41(2), however, confers on the Tribunal a broad discretionary power to make an order staying the operation or implementation of the decision under review “as the Tribunal consider appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review”, if the Tribunal “is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review”.
In Said, Deputy President Hotop explained the Tribunal’s approach to stay orders in matters similar to the current matter as follows:
In considering whether to make an order under s 41(2) of the AAT Act in cases like the present, where the decision under review involves the cessation of payments of money to the person who has applied to the Tribunal for review of that decision and who has requested the Tribunal to make an order staying that decision, the Tribunal has customarily had particular regard to three main factors, namely:
·The degree of hardship (if any) which may be suffered by that person as a result of the refusal to make a stay order;
·In the event that the person’s application for review is unsuccessful, the likelihood of recovery (by the payer) of moneys paid to that person as a result of the making of a stay order; and
·The prospects of success of the person’s application for review.
See, for example, Re Opie and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 132 ALD 584; Re Cremona and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 349.
The Tribunal also notes that in Re Secretary of Employment and Workplace Relations and Anastasiadis (2007) AATA 1065, the Tribunal found that in any stay application, the Tribunal should also determine whether:
·It is in the public interest to grant a Stay.
·The review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.
EVIDENCE
The Tribunal had before it the following material:
·Respondent’s Submissions Opposing Stay Applications dated 21 March 2016 and 11 April 2016.
·Applicant’s Submissions in Response to the Respondent’s Submission dated 28 April 2016 (Exhibit A1).
·Notes by Simon Swavek Wirski dated 8 June 2016 (Exhibit A2).
·“Trigger Point” Diagram dated 19 April 2016 (Exhibit A3).
·Medical Certificate by Dr John Whiteside dated 29 March 2016, including attached visit data (Exhibit A4).
·Medical reports and documents mentioned in the background timeline above.
·Oral evidence of Mr Wirski.
CONSIDERATION
Mr Wirski’s medical history since his injuries in 1998 is extensive and complex. In his stay application dated 21 March 2016, Mr Wirski states:
Comcare have not considered relevant past decisions by the AAT, their own past Determinations, confused my claim references and have now applied their Determination based on these errors. There are many more clerical and procedural errors that Comcare have made which I feel has compromised their own decision making process and led to an erroneous Determination. I will address these in my Application for Review of the Determination dated 18 December 2015.
In a note dated 8 June 2016, Mr Wirski further claimed confusion in relation to his conditions, stating:
There are three separate claims and treatments under three separate claim numbers 88099/2, 4 & 5 which have been frequently confused and sometimes ‘grouped together’ by Comcare and consequently those actions have affected medical examinations and reports (likely that this may have affected Dr Hayes’ report . (Exhibit A2 para 5)
At the commencement of these proceedings some confusion existed as to the medical conditions and treatments relevant to the stay applications before this Tribunal. After discussion and agreement between the parties, the Tribunal accepts that Mr Wirski’s stay applications, in addition to the rejected liability for right knee arthroscopy, apply to the following treatments:
·Chiropractic;
·Osteopathy;
·Magnesium Plus, Carnitine, Ultra Muscleze, Orudis, Voltaren Gel;
·Massage; and
·Rolfing.
Prospects of success of Mr Wirski’s Application for Review
The decisions under review are outlined in the Respondent’s written submissions before this Tribunal as follows:
In the applicant’s substantive application for review dated 21 March 2016 in W2016/1425, the applicant seeks review of a decision of the respondent which affirmed a determination made on 18 December 2015 that it was no longer liable to pay compensation for various specified medical treatment under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of his compensable conditions of ‘injuries to low back and left shoulder’ sustained on 12 February 1998 and ‘low back, right knee, right upper leg and right iliac crest injuries’ sustained on 16 February 1998 because on the available medical evidence, he was no longer suffering the effects of his compensable conditions.
In the applicant’s substantive application for review dated 11 April 2016 in W2016/1885, he seeks review of a decision of the respondent which affirmed a determination made on 11 February 2016 that it was not liable to pay compensation for a further right knee arthroscopy under section 16 of the Act because on the available medical evidence, he was no longer suffering the effects of his compensable conditions (paras 4 - 5).
Having regard to the history and complex nature of Mr Wirski’s substantive applications, and his written and oral submissions in these interlocutory proceedings, it is clear that the ultimate determination of Mr Wirski’s substantive applications will depend on the evidence before the Tribunal in due course.
The respondent told the Tribunal that the respondent’s submissions relating to the substantive applications were being prepared and that further medical evidence was expected.
Relevantly, in relation to this factor, the respondent concluded:
Although, the respondent recognises that ultimately the determination of both applications for review will largely depend on the Tribunal’s assessment of the applicant’s oral evidence and medical evidence presented by both parties, nonetheless, the respondent submits that the prospects of success favours [sic] the respondent, and that this factor should weigh heavily against the granting of a stay order to the applicant in either applications conditions (para 47).
Given that there is an arguable case, it is not necessary for this Tribunal to comment further about the prospects of success of Mr Wirski’s substantive applications. Accordingly, this factor does not weigh against a stay order.
Hardship
The Tribunal had before it only minimal details of Mr Wirski’s financial circumstances.
The respondent’s written submissions advised:
The applicant is currently receiving weekly payments of about $845. In addition, he is receiving a Commonwealth Superannuation pension. Given these payments, the respondent submits that he is receiving a combined income which is likely to be greater than that received by many persons in the Australian community, and as such it is (sic) may be inappropriate to speak of him in terms of hardship (para 34).
Although in his written submission for a stay order dated 21 March 2016, Mr Wirski said: “it will provide me with the confidence and financial surety to continue with my treatments and medication without the significant added stresses that the Determination of 18 December 2015 has brought upon me" (Exhibit A1), his stay applications contain no significant claim as to financial hardship that might accrue from a failure to be granted stay orders in the present proceedings.
In a note dated 8 June 2016e, Mr Wirski stated:
“Financial hardship was not questioned in the application for a Stay Order and in any case it is very subjective as it is dependent on an individual’s personal financial circumstances" (Exhibit A2 para 6).
Mr Wirski told this Tribunal that should he not be successful in the current stay applications, he could continue paying for his treatments for some time, but not indefinitely.
The Tribunal afforded Mr Wirski the opportunity to describe any hardship, other than financial hardship, that he considered might be a consequence should he not be granted the requested stay orders. Mr Wirski’s response was limited. Rather, he told the Tribunal that his medical conditions had impacted adversely on his family over an extended period. Mr Wirski said that his deep massage treatments cost approximately $100, and at some future time he might need his wife’s assistance with this treatment despite her having suffered a stroke.
Having regard to the limited information before it relevant to financial hardship, the Tribunal is not persuaded that Mr Wirski is in circumstances of financial hardship. Assessing hardship more broadly, the Tribunal considers that the factor of hardship provides little weight for the making of stay orders in these proceedings.
Likelihood of recovery of payments
The respondent submitted that the absence of information on Mr Wirski’s financial position precluded submissions on the likelihood of Mr Wirski being able to repay monies if a stay order was granted and if he was subsequently unsuccessful at the substantive review hearing (Exhibit R1 para 39).
In his written response to the respondent’s submission on this factor, Mr Wirski stated:
The applicant postulates for both applications to be considered on its merits for the need for medical treatments and medications alone. However, in event the applicant not being successful the respondent can recover the relevant costs from the applicant’s weekly payments with Comcare, or Commonwealth Superannuation Scheme Invalidity Pension (Exhibit A1 p4).
In the circumstances, the Tribunal gives no weight to this factor.
Right knee arthroscopy
In relation to Mr Wirski’s request dated 11 April 2016 for a stay order regarding Comcare’s rejection of liability for a further right knee arthroscopy, the respondent contended:
Insofar as the proposed further right knee arthroscopy, there is presently no suggestion from Dr Buelow that the procedure must be undertaken on an urgent basis. As such, the applicant should simply await the determination of the substantive application (Exhibit R1 para 51).
Mr Wirski respondent to this submission in his note dated 8 June 2016, as follows:
Dr Buelow would never recommend that arthroscopic knee surgery is urgent as knee injuries are not life threatening. However they can severely impact a person’s quality of life if they are not repaired/stabilised in a timely manner, and they can adversely impact on other conditions (Exhibit A2 para 7).
The Tribunal reviewed Dr Buelow’s report dated 1 February 2016, and in the absence of contrary evidence or submissions, accepts the respondent’s contention at paragraph 29 above.
This consideration weighs against a stay order in relation to the proposed right knee arthroscopy.
Other factors
The Tribunal had no evidence before it and received no submissions that the effectiveness of the substantive reviews would be affected adversely, or that a future substantive decision in Mr Wirski’s favour would be made nugatory, if stay orders were not granted.
Similarly, there was no evidence before the Tribunal and no submissions made by the parties as to the public interest should stay orders be granted or not granted in these proceedings.
CONCLUSION
Having regard to all the evidence, the Tribunal is not persuaded that it is desirable to make an order staying or otherwise affecting the operation or implementation (within the meaning of section 41(2) of the AAT Act) of the Comcare determinations related to Mr Wirski dated 18 December 2015 and 11 February 2016 respectively.
ORDER
For the reasons above, Mr Wirski’s requests for stay orders in Application No. 2016/1425 and Application No. 2016/1885 are refused pursuant to section 41(2) of the AAT Act.
I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall, Brigadier AG Warner, Member. .........[Sgd]...............................................................
Administrative Assistant
Dated 1 July 2016
Date of interlocutory hearing 8 June 2016 Applicant In person Representative for the
RespondentMs T Ling Solicitors for the Respondent
Australian Government Solicitor
2
1