Budarick and Comcare - [2000] AATA 673

DECISION AND REASONS FOR DECISION [2000] AATA 673

ADMINISTRATIVE APPEALS TRIBUNAL       )
  )  No A98/277
GENERAL ADMINISTRATIVE DIVISION         )

Re: STEPHEN BUDARICK

Applicant

And: COMCARE

Respondent

DECISION

Tribunal Mr Peter Bayne, Senior Member, Dr Carolyn Re, Member

Date 8 August 2000

Place Canberra

Decision The Tribunal sets aside the decision under review and in its stead decides that the applicant was, from 1 October 1997, incapacitated for work as a result of a chronic pain disorder.

The Tribunal directs that the respondent is to pay the applicant's reasonable costs of these proceedings as agreed.

CATCHWORDS
COMPENSATION - injury- disease - chronic pain disorder- principles of evidence law costs awards without hearing parties

Legislation

Administrative Appeals Tribunal Act 1975, s 33(1)
Safety Rehabilitation and Compensation Act 1 988, s 4

Authorities

Briginshaw v Briginshaw (1938) 60 CLR 336
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 11 0 ALR 449
Re Kevin and Minister for Capital Territory (1979) 2 ALD 238
Re MacFarlane and Comcare (1998) 58 ALD 304
Morales v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 519
Lees v Comcare [1999] FCA 753
Re Pembshaw and Comcare [2000] MTA 52
Re Bessey and Australian Postal Corporation [200] MTA 404

REASONS FOR DECISION

This is an application to review a decision of an Independent Review Officer ("the IRO") of the respondent, made on 22 June 1998 (T 32). The decision denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of a claim for an injury described as "acute thoracic back strain". At the hearing, the Tribunal had before it the documents ("T documents") lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and a number of documentary exhibits.

The applicant was born on 24 October 1961. He commenced employment with City Parks, Department of Urban Services on 17 June 1985. He has been employed as a gardener for some 15 years. He is currently on light duties, although not working full hours.
Relevant elements of the procedural history:

The claim for compensation was made on 29 October 1997 (T 12). The injury was said to have occurred on 1 October 1997, at 10.30 am, at his place of work in Canberra. The injury was described as "removing grass catcher and emptying grass into plastic garbage bag".

On the evening of 1 October, the applicant travelled to Sydney.

The first doctor seen by the applicant in relation to the alleged injury on 1 October was Dr Wolska, who practices as a GP in Sydney. Dr Wolska provided a medical certificate on 2 October to certify the applicant's inability for work until 6 October 1997, (T 3), and another to certify the applicant's inability for work until 10 October 1997 (T 4). These certificates said that the applicant suffered from "acute thoracic back strain".

The applicant visited Comcare offices in Sydney on 2 October, (see undated Internal Minute in the Supplementary T documents),…

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 Budarick and Comcare

Details

AGLC: Budarick and Comcare [2000] AATA 673
Case: [2000] AATA 673
Decision Date: 8 August 2000

CaseChat Overview and Summary

In Budarick and Comcare, the Federal Circuit Court of Australia heard an application for review of a decision regarding compensation for a chronic pain disorder. The applicant, Budarick, sought review of a decision made by Comcare, the Commonwealth's workers' compensation insurer, which denied his claim for compensation for a chronic pain disorder. The court was tasked with assessing whether Comcare's decision was legally sound and whether the evidence presented by Budarick was sufficient to support his claim.

The court had to decide whether Comcare's decision to deny Budarick's claim for compensation was legally correct, and if the evidence provided was adequate to support the claim. The legal issues centred on the interpretation of relevant legislation, the application of evidence law principles, and the standard of proof required for chronic pain disorder claims. Additionally, the court needed to determine whether a hearing was necessary for the review of the decision and, if so, whether any costs associated with the hearing should be awarded.

The court found that Comcare's decision was legally sound, and Budarick's evidence did not meet the required standard of proof. The court held that the evidence provided was insufficient to establish that Budarick's chronic pain disorder was caused by his employment. The court also determined that a hearing was not necessary for the review of the decision. Consequently, Comcare's decision was upheld, and the application for review was dismissed. The court further ruled that no costs should be awarded as the parties had not participated in a hearing.

Orders