Baird and Comcare - [2007] AATA 1886

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1886
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600146

GENERAL ADMINISTRATIVE DIVISION )

Re ALLAN BAIRD

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member L Hastwell
Professor P Reilly AO (Member)
Date 19 October 2007
Place Adelaide

Decision
The Tribunal affirms the determination of 15 March 2006 with respect to the applicant’s claim for compensation for permanent impairment as a result of a back injury sustained by him on 12 April 2004.

..............................................
L HASTWELL
(Senior Member)

CATCHWORDS
COMPENSATION – Commonwealth employees – fall from chair – lumbar sprain – discal injury – annular tear – liability accepted for injury– degree of impairment under the Guide to the Assessment of the Degree of Permanent Impairment – back pain – ROM of spine – loss of spinal movement – leg pain -– ability to walk distances and deal with steps – inconsistency between statements of applicant as to impairment and surveillance evidence – medical evidence prefaced upon genuine history being provided – surveillance evidence as independent witness – nil impairment under Table 9.5 and under Table 9.6 – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27
Guide to Assessment of Permanent Impairment
Canute v Comcare (2006) 91 ALD 552
Comcare v Fiedler (2001) 115 FCR 328
Comcare v Moon (2003) 75 ALD 160

REASONS FOR DECISION

19 October 2007 Senior Member L Hastwell
Professor P Reilly AO (Member)

On 12 April 2004, Allan Baird (the applicant) sustained an injury to his lower back during the course of his employment as Acting Director of the Vietnam Veterans’ Counselling Service (VVCS).
Liability for “lumbar sprain” was accepted by the respondent (Comcare).
On or about 6 October 2005, the applicant lodged a claim for permanent impairment arising from this incident claiming permanent impairment with respect to his lower back and left leg pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
The applicant’s claim was rejected on 15 March 2006, on the basis that the applicant’s condition could not yet be considered permanent as his active treatment was not complete.
The applicant lodged an amended compensation claim (T38/129) on 29 November 2005 in which his treating specialist certified that his condition had become permanent.
On 15 March 2006, upon reconsideration, Comcare affirmed the determination of 7 November 2005.
The applicant lodged an application for review of that reconsideration to this Tribunal on 31 May 2006.

legislation

Both claims arise under the Safety, Rehabilitation and Compensation Act 1998 (Cth) (the Act).
Section 14 of the Act provides for the payment of compensation to Commonwealth employees in certain circumstances. Section 14(1) provides:

“14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”

“Injury” is defined in s 4 of the Act as follows:

“injury means:

(a) a disease suffered…

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 Baird and Comcare

Details

AGLC: Baird and Comcare [2007] AATA 1886
Case: [2007] AATA 1886
Decision Date: 19 October 2007

CaseChat Overview and Summary

In the case of Baird and Comcare, the applicant, a Commonwealth employee, suffered a lumbar sprain and discal injury, including an annular tear, following a fall from a chair. The Commonwealth accepted liability for the injury but disputed the degree of impairment as assessed under the Guide to the Assessment of the Degree of Permanent Impairment. The dispute was heard by the Administrative Appeals Tribunal (AAT). The primary legal issue before the court was to determine the degree of permanent impairment the applicant suffered due to his back injury. This involved assessing the applicant’s degree of impairment in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 and the Guide to Assessment of Permanent Impairment. The court also had to consider the consistency of the applicant’s statements regarding his impairment against the surveillance evidence provided.

The Tribunal examined the medical evidence and the applicant's statements, noting that the medical evidence was predicated on the applicant providing a genuine history of his condition. However, there was an inconsistency between the applicant’s statements and the surveillance evidence. The surveillance evidence, acting as an independent witness, indicated no impairment under Table 9.5 and under Table 9.6 of the Guide. The Tribunal found that the medical evidence relied on the applicant’s history, which was contradicted by the surveillance evidence. Consequently, the Tribunal affirmed the previous determination that the applicant had no impairment under the Guide to the Assessment of the Degree of Permanent Impairment.

The Tribunal concluded that, based on the evidence before it, the applicant did not meet the criteria for any degree of impairment. Therefore, the Tribunal upheld the decision that the applicant was not entitled to compensation for permanent impairment. The Tribunal's decision was based on the inconsistency between the applicant’s statements and the independent surveillance evidence, which undermined the reliability of the applicant's claims regarding the degree of his impairment.

Orders

Orders of the court

The Tribunal affirms the determination of 15 March 2006 with respect to the applicant’s claim for compensation for permanent impairment as a result of a back injury sustained by him on 12 April 2004.

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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