Alcock and Comcare - [2007] AATA 2024

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2024
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/196, A2006/120, GENERAL ADMINISTRATIVE DIVISION ) A2006/121

Re
SONIA ALCOCK

Applicant

And

COMCARE

Respondent

DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D Miller AO, Member

Date7 December 2007
PlaceCanberra

Decision
Application A2005/196

1.   The decision of Comcare made 27 June 2005 (Reconsideration No.118473) is set aside.

2.   In substitution it is decided that Comcare is liable to pay compensation to Ms Alcock in respect of the accepted injury of repetitive strain injury on the following basis:

1)     that Ms Alcock has been totally incapacitated for work for the period from 11 September 2003 to the date of this decision;

2)     that Ms Alcock is entitled to be compensated for medical treatment that it was reasonable for her to obtain in relation to the accepted injury during the period referred to.

Application A2006/120

3.   The decision of Comcare made 2 May 2006 (Reconsideration No.119208) is set aside.

4. In substitution it is decided that the accepted injury of repetitive strain injury has resulted in a permanent impairment of ten per cent and Comcare is liable to pay compensation to Ms Alcock pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury.

Application A2006/121

5.   The decision of Comcare made 2 May 2006 (Reconsideration No.119207) disallowing Ms Alcock’s claim for compensation for an injury being a psychiatric condition is affirmed.

Applications A2005/196 and A2006/120

6.   The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Alcock.

……..............................................
J.W. Constance, Senior Member

CATCHWORDS
COMPENSATION – Commonwealth employees - Regional pain syndrome – Comcare ceased liability claiming no longer work related – Whether Applicant still suffers from work related injury - Whether Applicant entitled to compensation under sections 16 and 19 – Decision set aside and substituted - Whether injury resulted in permanent impairment – Assessment of degree under table 9.4 of the Guide – Decision set aside and substituted
COMPENSATION – Commonwealth employees – Depression – Whether a rehabilitation program contributed to the psychological injury in a material degree – Decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 24
Canute v Comcare (2006) 226 CLR 535
Comcare v Fiedler (2001) 115 FCR 328
Commonwealth of Australia v Borg (1994) 20 AAR 299
REASONS FOR DECISION
J.W. Constance, Senior Member
Dr M.D Miller AO, Member
7 December 2007

INTRODUCTION
Application A2005/196
1. In 1984 Ms Alcock suffered what was then known as a repetitive strain injury to her arms. From that time until September 2003 she was paid compensation on the basis that she was totally incapacitated for work. In August 2003 Comcare decided that Ms Alcock was no longer entitled to compensation for incapacity and treatment expenses on the basis that Ms Alcock’s complaints at the time were not related 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 Alcock and Comcare

Details

AGLC: Alcock and Comcare [2007] AATA 2024
Case: [2007] AATA 2024
Decision Date: 7 December 2007

CaseChat Overview and Summary

Ms Alcock brought an appeal against Comcare's decision to cease liability for compensation for a work-related repetitive strain injury and a psychiatric condition. The court was tasked with determining whether Comcare's decision was correct and whether Ms Alcock was still suffering from work-related injuries that entitled her to compensation. The dispute centred on the nature and extent of her injuries and whether they were related to her employment.

The court considered several legal issues, including whether Ms Alcock's repetitive strain injury was still causing total incapacity for work and if it had resulted in a permanent impairment. It also had to determine if a rehabilitation program contributed materially to her psychiatric condition. The court examined the relevant sections of the Safety, Rehabilitation and Compensation Act 1988 and considered previous case law, such as Canute v Comcare and Comcare v Fiedler, to inform its decision.

The court found that Comcare's decision to cease liability was incorrect. It set aside the decisions and substituted new ones, ruling that Ms Alcock was still incapacitated for work due to her repetitive strain injury and was entitled to compensation for medical treatment related to that injury. The court also decided that the repetitive strain injury resulted in a ten percent permanent impairment, warranting compensation. However, the court affirmed Comcare's decision to disallow compensation for the psychiatric condition, finding that the rehabilitation program did not contribute materially to it.

The final orders included setting aside Comcare's decisions and substituting new ones, requiring Comcare to pay compensation to Ms Alcock for her repetitive strain injury and its consequences. The court also granted the parties liberty to apply for costs within 14 days, with Comcare to bear the costs if no application was made.

Orders

Orders of the court

Application A2005/196

1. The decision of Comcare made 27 June 2005 (Reconsideration No.118473) is set aside.

2. In substitution it is decided that Comcare is liable to pay compensation to Ms Alcock in respect of the accepted injury of repetitive strain injury on the following basis:

1) that Ms Alcock has been totally incapacitated for work for the period from 11 September 2003 to the date of this decision;

2) that Ms Alcock is entitled to be compensated for medical treatment that it was reasonable for her to obtain in relation to the accepted injury during the period referred to.

Application A2006/120

3. The decision of Comcare made 2 May 2006 (Reconsideration No.119208) is set aside.

4. In substitution it is decided that the accepted injury of repetitive strain injury has resulted in a permanent impairment of ten per cent and Comcare is liable to pay compensation to Ms Alcock pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury.

Application A2006/121

5. The decision of Comcare made 2 May 2006 (Reconsideration No.119207) disallowing Ms Alcock’s claim for compensation for an injury being a psychiatric condition is affirmed.

Applications A2005/196 and A2006/120

6. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Alcock.

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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