Young and Comcare - [2003] AATA 588

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 588
ADMINISTRATIVE APPEALS TRIBUNAL ) No. A2000/124
) No. A2000/125

GENERAL ADMINISTRATIVE DIVISION ) No. A2000/223

Re CATHERINE YOUNG

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr G A Mowbray
Date20 June 2003
PlaceCanberra

Decision
The Tribunal:

1.       Sets aside the decision under review in matter A2000/124 and remits the matter to the Respondent for reconsideration with a direction that Mrs Young continues to suffer from “bilateral lateral epicondylitis both arms (more in left than right)”.

2.       Sets aside the decision under review in matter A2000/125 and remits the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that:

(a)   Mrs Young suffered post traumatic stress disorder (PTSD) and other psychiatric conditions as a result of a motor vehicle accident on 6 April 1999;

(b)   the PTSD was successfully treated and had been completely cured by June 2000;

(c)   the other psychiatric conditions had resolved by the end of June 2001;

(d)   Mrs Young was incapacitated for work between November 1999 and September 2000 as a result of her compensable psychological/psychiatric injuries;

(e)   any incapacity for work after September 2000 was not due to her compensable psychological/psychiatric injuries.

3.       Affirms the decision under review in matter A2000/223.

4.       Orders the Respondent to pay the Applicant’s costs in matters A2000/124 and A2000/125 as agreed or taxed.

...................(sgd).......................
Member

CATCHWORDS
COMPENSATION – whether accepted epicondylitis condition continued or resolved – whether motor vehicle accident resulted in neck and back injuries – whether accident resulted in psychological or psychiatric injuries – whether incapacitated as a result of compensable conditions – entitlement to massage expenses
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19
Comcare v Nichols [1999] FCA 209
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Borg (1991) 20 AAR 299n
Comcare v Mooi (1996) 69 FCR 439; 137 ALR 690; 23 AAR 160
Kirkpatrick v Commonwealth (1985) 9 FCR 36; 62 ALR 533
Rodriguez v Telstra Corporation Limited [1999] FCA 1400
Re Salters and Telstra Corporation Limited [2002] AATA 75
Wiegand v Comcare [2002] FCA 1464
Comcare v Watson (1997) 73 FCR 273; 46 ALD 481; 24 AAR 516
REASONS FOR DECISION

20 June 2003 Mr G A Mowbray

1. This matter concerns three applications for review lodged with the Tribunal by Mrs Catherine Young. The first (A2000/124) is for review of a decision by Comcare on 10 January 2000 affirming a previous determination that from and including 1 July 1999 it was no longer liable under section 16 of the Safety, Rehabilitation and Compensation Act 1998 (“the Act”) or any other provision of the Act to pay compensation for Mrs Young’s “bilateral lateral epicondylitis both arms (more in left than right)”.. Lateral epicondylitis is often colloquially known as “tennis elbow”.
2. The second application (A2000/125) is for review of a decision by…

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 Young and Comcare

Details

AGLC: Young and Comcare [2003] AATA 588
Case: [2003] AATA 588
Decision Date: 20 June 2003

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal (AAT) involved a dispute between the Commonwealth of Australia, trading as Comcare, and Mrs Young regarding various claims for compensation following a motor vehicle accident. The dispute encompassed questions about the ongoing nature of Mrs Young's lateral epicondylitis, her neck and back injuries, psychological and psychiatric conditions, her capacity to work, and the entitlement to reimbursement for massage expenses. The AAT was tasked with reviewing and, if necessary, altering the decisions made by Comcare in three distinct matters.

The legal issues before the AAT included determining whether Mrs Young's lateral epicondylitis had resolved or persisted, the extent of her neck and back injuries resulting from the accident, whether her psychological and psychiatric conditions were linked to the accident, her incapacity for work due to these conditions, and the legitimacy of her claim for massage expenses. Additionally, the AAT needed to assess the timeline and effectiveness of her treatment for psychological and psychiatric conditions, specifically post-traumatic stress disorder (PTSD).

The AAT reviewed the evidence presented, including medical reports and testimonies, and concluded that Mrs Young continued to suffer from bilateral lateral epicondylitis, more significantly in her left arm. The Tribunal also found that her PTSD, resulting from the accident, was successfully treated and had been fully cured by June 2000. Other psychiatric conditions had resolved by the end of June 2001. The AAT determined that Mrs Young was incapacitated for work due to her psychological and psychiatric injuries between November 1999 and September 2000, but any incapacity thereafter was unrelated to these injuries. The AAT affirmed the decision in the third matter, related to the massage expenses, as it was uncontested.

In light of its findings, the AAT set aside the decisions under review in two matters and remitted them to Comcare for reconsideration with specific directions. It affirmed the decision in the third matter and ordered Comcare to pay Mrs Young's costs in the two matters under review.

Orders

Orders of the court

The Tribunal:

1. Sets aside the decision under review in matter A2000/124 and remits the matter to the Respondent for reconsideration with a direction that Mrs Young continues to suffer from “bilateral lateral epicondylitis both arms (more in left than right)”.

2. Sets aside the decision under review in matter A2000/125 and remits the matter to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that:

(a) Mrs Young suffered post traumatic stress disorder (PTSD) and other psychiatric conditions as a result of a motor vehicle accident on 6 April 1999;

(b) the PTSD was successfully treated and had been completely cured by June 2000;

(d) Mrs Young was incapacitated for work between November 1999 and September 2000 as a result of her compensable psychological/psychiatric injuries;

(e) any incapacity for work after September 2000 was not due to her compensable psychological/psychiatric injuries.

3. Affirms the decision under review in matter A2000/223.

4. Orders the Respondent to pay the Applicant’s costs in matters A2000/124 and A2000/125 as agreed or taxed.

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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