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BALACKI And COMCARE

BALACKI And COMCARE

Case [2013] AATA 768 28 October 2013

Compensatory Damages

Causation

Standing

Workers Compensation Law

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[2013] AATA 768

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )          2012/3289
GENERAL ADMINISTRATIVE DIVISION       )

ReTANIA BALACKI
Applicant

AndCOMCARE
Respondent

DECISION

Tribunal:  Deputy President S A Forgie
Date:  28 October 2013
Place:  Melbourne

Decision:The Tribunal affirms the decision of a delegate of the respondent dated 1 June 2012 affirming a determination dated 27 January 2012 disallowing Mrs Balacki’s claim for subacromial bursitis (shoulder) (right), chronic pain syndrome (arm) (right) and tenosynovitis (bicep) (right) under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
_(sgd) S A Forgie_
Deputy President

CATCHWORDS – COMPENSATION – disease – chronic pain syndrome - pain suffered during work tasks – pain suffered outside of work tasks – work tasks do not aggravate or accelerate underlying condition – pain is response of underlying condition to tasks or activities performed - decision affirmed.

WORDS AND PHRASES – “to a significant degree”.

Acts Interpretation Act 1901, s 15AB
Administrative Appeals Tribunal Act 1975, s 39
Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007, ss 2 and item 2, 3, Sch 1 and item 11

Workers’ Compensation Act 1951 (ACT), s 9
Workers Compensation Act 1987 (NSW), s 4
Commonwealth Employees’ Rehabilitation and Compensation Bill 1988

Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006

Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533; 87 ALR 385
Australian Postal Corporation v Lucas [1991] FCA 612; (1991) 33 FCR 101; 14 AAR 487; 25 ALD 266
Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535; 91 ALD 552; 229 ALR 445; 80 ALJR 1578
Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399; 10 AAR 191; 17 ALD 321

Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232
Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495

Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523
Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369
Darling Island Stevedoring & Lighterage Co Limited v Hankinson [1967] HCA 10; (1967) 117 CLR 19

Dunstan v Comcare [2011] FCAFC 108; (2011) 125 ALD 362
Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34; (1964) 110 CLR 626

Holt v Comcare [2003] FCAFC 221; (2003) 130 FCR 576
Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547
Kennedy Cleaning v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626
Martin v Australian Postal Corporation [1999] FCA 655; (1999) 29 AAR 420
Re Cook and Comcare [2003] AATA 16
Re Crouch and Comcare [2013] AATA 608
Re Meaney and Comcare [2012] AATA 352
Re Musumeci and Department of Health (NT) (1990) 19 ALD 797
Suters v Australian Postal Corporation…

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 BALACKI And COMCARE

Details

AGLC: BALACKI And COMCARE [2013] AATA 768
Case: [2013] AATA 768
Decision Date: 28 October 2013

CaseChat Overview and Summary

BALACKI And COMCARE involved a dispute between Mrs Balacki and COMCARE regarding a claim for compensation for certain medical conditions. The case was heard in the Administrative Appeals Tribunal, which was tasked with determining whether Mrs Balacki was entitled to compensation for subacromial bursitis, chronic pain syndrome, and tenosynovitis. The dispute hinged on whether the work tasks performed by Mrs Balacki had a significant impact on her medical conditions.

The central legal issue was whether the work tasks undertaken by Mrs Balacki had a significant impact on her medical conditions, thereby making her eligible for compensation. The Tribunal had to assess whether the pain experienced during work tasks was a direct response of the underlying condition to the tasks performed, or if the pain was unrelated to her employment. The Tribunal also needed to consider whether the work tasks aggravated or accelerated the underlying condition.

In its decision, the Tribunal concluded that Mrs Balacki's work tasks did not significantly aggravate or accelerate her underlying condition. The pain experienced during work tasks was a response of her underlying condition to the tasks performed. Given these findings, the Tribunal affirmed the decision of the delegate of COMCARE that disallowed Mrs Balacki's claim for compensation. The Tribunal held that the pain suffered outside of work tasks was not significantly related to her employment, and therefore, she was not entitled to compensation for her medical conditions.

The Tribunal's decision was upheld, and the claim for compensation was disallowed. This outcome means that Mrs Balacki is not entitled to compensation for the medical conditions in question under the relevant legislation.

Orders

Orders of the court

The Tribunal affirms the decision of a delegate of the respondent dated 1 June 2012 affirming a determination dated 27 January 2012 disallowing Mrs Balacki’s claim for subacromial bursitis (shoulder) (right), chronic pain syndrome (arm) (right) and tenosynovitis (bicep) (right) under s 14 of the Safety, Rehabilitation and Compensation Act 1988.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

BALACKI And COMCARE [2013] AATA 768

Most Recent Citation

Prior and Comcare (Compensation) [2017] AATA 844

Cases citing this decision · 5 of 5 shown

Mudaliar and Comcare (Compensation)
[2022] AATA 220 Para 11

…on the particular evidence in the particular case. [39] [39] Balacki and Comcare [2013] AATA 768 at [26]. Citations omitted. In Comcare v Martin [40] the High Court made it clear that a compensable claim cannot arise unless the in injury or ailment would not have arisen but for causative factors arising directly f…
Hovenden and Comcare (Compensation)
[2020] AATA 3695 Para 7

…ting the condition itself, and it is the latter that is an aggravation of a disease or of an injury (other than a disease) and not the former. [37] [2013] AATA 768 at [34]. [38] 167 CLR 533.…
Shirreff and Comcare (Compensation)
[2020] AATA 1710 Para 35

…mething becoming worse.” Mr Lenczner submitted that the opinion of AP Romas should be accepted as it details the Applicant’s condition. [1] [2013] AATA 768. [2] (1981) 53 FLR 191. [3] Balacki and Comcare [2013] AATA 768 at [26].…
Almeida and Australian Postal Corporation (Compensation)
[2017] AATA 1001 Para 15

…In Re Balacki and Comcare [2013] AATA 768 the Tribunal stated at [74]: …I find instead that, on the balance of probabilities, Mrs Balacki’s condition is not contributed to any degree by her employment let alone to a significant degree. Certainly, she experiences symptoms at work and, understandably, she associates…
Prior and Comcare (Compensation)
[2017] AATA 844 Para 29

…In Re Balacki and Comcare [2013] AATA 768 the Tribunal stated at [74]: …I find instead that, on the balance of probabilities, Mrs Balacki’s condition is not contributed to any degree by her employment let alone to a significant degree. Certainly, she experiences symptoms at work and, understandably, she associates…

View all 5 citing cases →

Cases cited in this decision · 25 of 25 shown

Crouch and Comcare
[2013] AATA 608 Para 1

…l’ (s 5B(3)) in a context where ‘material’ itself means something of substance (see above Sahu-Khan ). ”[65] [64] [2013] AATA 608; Deputy President Handley [65] [2013] AATA 608 at [40]…
Mary Meaney and Comcare
[2013] AATA 299 Para 1

…given by the Tribunal’s President, Kerr J, in determining the constitution of the Tribunal on remittal: Re Meaney and Comcare [2013] AATA 299; (2013) 60 AAR 384. The President noted that “ The remittal orders were made by consent without formal hearing. ” He then set out the matters that Buchanan J had agreed warr…
MARY MEANEY and COMCARE
[2012] AATA 352 Para 1

…degree which is more than de minimis and is substantial or considerable…. [: Comcare v Sahu-Khan ( 2007) 156 FCR 536 at [15]]”[67] [66] [2012] AATA 352 [67] [2012] AATA 352 at [103] An appeal from the decision was allowed by Buchanan J on 6 February 2013. His Honour’s order of that date is found through the Common…
Dunstan v Comcare
[2011] FCAFC 108 Para 1

…oar , French and Stone JJ in Canute rejected the notion that the ‘but for’ test is an appropriate test of the causal relationship. ”[63] [62] [2011] FCAFC 108; (2011) 125 ALD 362; Gray, Cowdroy and Reeves JJ [63] [2011] FCAFC 108; (2011) 125 ALD 362 at [39]; 371 per Gray and Cowdroy JJ with whom Reeves J agreed…
Comcare v Sahu-Khan
[2007] FCA 15 Para 1

…nce” [rather than the] legal sense of “pertinent” or “likely to influence”’. ”[60] [58] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 [59] (1989) 10 AAR 323 [60] [2007] FCA 15; (2007) 156 FCR 536; 44 AAR 523 at [15]; 542; 530…
Canute v Comcare
[2006] HCA 47 Para 1

…1) of the indefinite article in the expression ‘an injury’ reinforces that conclusion. ”[25] [24] [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 80 ALJR 1578; 91 ALD 552; Gummow ACJ, Kirby, Callinan, Heydon and Crennan JJ [25] [2006] HCA 47; (2006) 226 CLR 535; 229 ALR 445; 80 ALJR 1578; 91 ALD 552 at [10]; 540…
Holt v Comcare
[2003] FCAFC 221 Para 1

…hat it was no longer liable. The question before the Tribunal had been whether the aggravation that had occurred in 1985 was continuing in 2000. [47] [2003] FCAFC 221; (2003) 130 FCR 576; Gray, Cooper and Selway JJ…
Cook and Comcare
[2003] AATA 16 Para 1

…missions she made on behalf of Comcare, Ms Burchell said that “ The views of Dr Fraser are supported by the medical witnesses in Cook v Comcare [2003] AATA 16 at [55], [59], [65]’ [71], [72], [73] and [78]. ” I have paid no regard to this submission for only one reason. That reason is that the evidence presented…
Kennedy Cleaning Services Pty Ltd v Petkoska
[2000] HCA 45 Para 1

…avation, acceleration or recurrence were deemed to be a personal injury arising out of the employment of the worker. [19] [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626; Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Callinan J dissenting…
Martin v Australian Postal Corporation
[1999] FCA 655 Para 1

…ment to compensation is identical with that which would flow from the like incapacity resulting from any other kind of injury. … ”[30] [28] [1999] FCA 655; (1999) 29 AAR 420 [29] [1967] HCA 10; (1967) 117 CLR 19; Barwick CJ, Kitto, Taylor, Menzies and Owen JJ [30] [1967] HCA 10; (1967) 117 CLR 19 at 26-27…
Zickar v MGH Plastic Industries Pty Ltd
[1996] HCA 31 Para 1

…7 CLR 310; 140 ALR 156; 71 ALJR 32 Toohey, McHugh, Gummow and Kirby JJ; Brennan CJ, Dawson and Gaudron JJ dissenting [16] [1996] HCA 31; (1996) 187 CLR 310; 140 ALR 156; 71 ALJR 32 at 330; 170; 42 per Toohey, McHugh and Gummow JJ…
Comcare v Mooi, Paul
[1996] FCA 580 Para 1

…s intended to cover the whole range of physical and mental illnesses from major to minor ones. ”[10] [9] [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495 [10] [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495 at [10]; 443; 498…
Australian Postal Corporation v Lucas, J.K. (now Owen)
[1991] FCA 792 Para 1

…elevant to show an aggravation: cf Commonwealth v Beattie (1981) 53 FLR 191 at 201, per Evatt and Sheppard JJ. ”[43] [41] [1991] FCA 612; (1991) 33 FCR 101; 14 AAR 487; 25 ALD 266 [42] [1991] FCA 612; (1991) 33 FCR 101; ; 14 AAR 487; 25 ALD 266 at 106; 492; 271 [43] [1991] FCA 612; (1991) 33 FCR 101; ; 14 AAR 487; 2…
Australian Postal Corporation v Lucas
[1991] FCA 612 Para 1

…ng pain may be relevant to show an aggravation: cf Commonwealth v Beattie (1981) 53 FLR 191 at 201, per Evatt and Sheppard JJ. ”[43] [41] [1991] FCA 612; (1991) 33 FCR 101; 14 AAR 487; 25 ALD 266 [42] [1991] FCA 612; (1991) 33 FCR 101; ; 14 AAR 487; 25 ALD 266 at 106; 492; 271 [43] [1991] FCA 612; (1991) 33 FCR 1…
Treloar v Australian Telecommunications Commission
[1990] FCA 511 Para 1

…hed, however, it matters not that the contribution be large or small. ”[52] [50] Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535 at [21]; 323; 328; 541-542 per Sweeney ACJ, Sheppard and Foster JJ [51] [1990] FCA 511; (1990) 26 FCR 316; 97 ALR 321; 12 AA…
Asioty v Canberra Abattoir Pty Ltd
[1989] HCA 40 Para 1

…came and the more difficult to treat. The condition tended to become resistant to treatments that would have brought it under control. [44] [1989] HCA 40; (1989) 167 CLR 533; 87 ALR 385…
Casarotto v Australian Postal Commission
[1989] FCA 116 Para 1

…evelopment of an underlying progressive disease may be to increase or make worse the severity of that disease. ”[27] [26] [1989] FCA 116; (1989) 86 ALR 399; 10 AAR 191; 17 ALD 321 [27] [1989] FCA 116; (1989) 86 ALR 399; 10 AAR 191; 17 ALD 321 at [23]; 405; 197; 327…
Commonwealth of Australia v Beattie, Kathleen
[1981] FCA 89 Para 1

…f a pre-existing injury. Whether it does is a question to be decided on the particular evidence in the particular case. [32] [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369; Evatt, Sheppard and Kelly JJ [33] [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369 at 201; 378 per Evatt and Sheppard JJ…
Commonwealth of Australia v Beattie
[1981] FCA 88 Para 1

…n aggravation of a pre-existing injury. Whether it does is a question to be decided on the particular evidence in the particular case. [32] [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369; Evatt, Sheppard and Kelly JJ [33] [1981] FCA 88; (1981) 53 FLR 191; 35 ALR 369 at 201; 378 per Evatt and Sheppard JJ…
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson
[1967] HCA 10 Para 1

…that which would flow from the like incapacity resulting from any other kind of injury. … ”[30] [28] [1999] FCA 655; (1999) 29 AAR 420 [29] [1967] HCA 10; (1967) 117 CLR 19; Barwick CJ, Kitto, Taylor, Menzies and Owen JJ [30] [1967] HCA 10; (1967) 117 CLR 19 at 26-27…
Federal Broom Co Pty Ltd v Semlitch
[1964] HCA 34 Para 1

…cant’s illness, or to be concerned because witnesses labelled it differently. ”[14] [14] Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34; (1964) 110 CLR 626; McTiernan, Kitto, Taylor, Windeyer and Owen JJ at 639 per Windeyer J…
Kavanagh v The Commonwealth
[1960] HCA 25 Para 1

…occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection. ”[18] [17] [1960] HCA 25; (1960) 103 CLR 547; Dixon CJ, Fullaghar and Menzies JJ; Taylor and Windeyer JJ dissenting [18] Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547…
Federal Broom Co Pty Ltd v Semlitch
[1954] HCA 34 Para 1

…el on the applicant’s illness, or to be concerned because witnesses labelled it differently. ”[14] [14] Federal Broom Co Pty Ltd v Semlitch [1954] HCA 34; (1964) 110 CLR 626; McTiernan, Kitto, Taylor, Windeyer and Owen JJ at 639 per Windeyer J…
Comcare vMooi
[1996] FCA 1587 Para 1

…that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones. ”[10] [9] [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495 [10] [1996] FCA 1587; (1996) 69 FCR 439; 42 ALD 495 at [10]; 443; 498…
[2005] FCAFC 262
[2005] FCAFC 262 Para 1

…ompensation will be payable if that injury results in the death, incapacity or impairment of the employee.’ (Emphasis added) ”[56] [55] [2005] FCAFC 262; (2005) 148 FCR 232; French and Stone JJ; Gyles J dissenting The judgment was reversed on appeal but not on this point: Canute v Comcare [2006] HCA 47; (2006) 226…

Legislation cited in this decision · 8

Safety, Rehabilitation and Compensation Act 1988 (Cth)
14, 4, 5A, 5B 5 mentions (from Para 1)
Administrative Appeals Tribunal Act 1975 (Cth)
39 3 mentions (from Para 1)
Acts Interpretation Act 1901 (Cth)
15AB, 15AB(1)(b)(i) 2 mentions (from Para 1)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
2, 3 2 mentions (from Para 1)
Workers Compensation Act 1951 (ACT)
9 2 mentions (from Para 1)
Workers Compensation Act 1987 (NSW)
4 2 mentions (from Para 1)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
1 mention (from Para 2)
Veterans' Entitlements Act 1986 (Cth)
1 mention