Colley and Comcare (Compensation) - [2019] AATA 166

Colley and Comcare (Compensation) [2019] AATA 166 (18 February 2019)
Division:GENERAL DIVISION
File Number: 2016/1811 & 2016/1812
Re:ShaneColley
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:18 February 2019
Place:Brisbane

The decision under review is affirmed.
............................[sgd]............................................
Senior Member Theodore Tavoularis
CATCHWORDS
COMPENSATION – medical treatment – definition of injury – whether Applicant suffers from an aggravation of a physical or mental injury (other than a disease) – section 5A(1)(c) of the Safety Rehabilitation and Compensation Act 1988 (Cth) – whether Applicant suffers from sprain in other specified sites of hip and thigh – whether Applicant continues to suffer from such condition – whether Applicant’s condition arose out of, or in the course of, his employment with the Commonwealth – whether Applicant is entitled to compensation for his hip surgery – sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 6, 14, 16, 19
CASES
Alamos and Comcare [2014] AATA 629
Chowdhary and Comcare [1998] AATA 448
Comcare v Holt [2007] FCA 405
Durham and Comcare [2014] AATA 753
Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321
Popovic and Comcare [2000] AATA 246
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
SECONDARY MATERIALS
Clinical Framework for the Delivery of Health Services
REASONS FOR DECISION
Senior Member Theodore Tavoularis
18 February 2019
INTRODUCTION

Mr Shane Colley (“the Applicant”) has suffered an injury to his right hip and thigh, for which he had claimed compensation from Comcare (“the Respondent”) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).
The asserted injury manifested, in claim terms, as follows:
(a)On 14 March 2015, the Applicant lodged an incident report asserting an aggravation of a pre-existing injury “whilst maintaining [his] fitness and increasing his exercise routine.”;[1]
(b)On 5 May 2015, the Applicant lodged a Claim for Workers’ Compensation for “right hip strain” that apparently was suffered on 5 November 2014. According to the Applicant, this injury was suffered “while completing exercise for treatment with my physiotherapist and exercise physiologist.”[2]
[1] Exhibit 5, T Documents, T28, page 183.
[2] Ibid, T17, pages 106-115.
First claimed condition: sprain of other specified sites of hip and thigh (right).
The Respondent denied liability for the claimed “right hip strain” in a determination dated 12 June 2015.[3] The Respondent reconsidered this decision to deny liability of its own volition and by the resulting decision dated 28 July 2015, the initial determination denying liability dated 12 June 2015 was revoked and liability was accepted for a “right iliotibial band strain condition.”[4]
[3] Ibid, T26, pages 161-169.
[4] Ibid, T37, pages 246-247.
The Applicant then requested, via an email dated 2 October 2015, that the name of the sprain of other specified sites of the hip and thigh (right) condition be amended to “labral tear right hip

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 Colley and Comcare (Compensation)

Details

AGLC: Colley and Comcare (Compensation) [2019] AATA 166
Case: [2019] AATA 166
Decision Date: 18 February 2019

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Mr Colley, for compensation from Comcare for medical treatment, specifically hip surgery. The dispute centred on whether the Applicant's condition constituted an "injury" as defined by the *Safety Rehabilitation and Compensation Act 1988* (Cth) and whether that injury arose out of or in the course of his employment with the Commonwealth. The decision was made by Theodore Tavoularis SM.

The legal issues before the court were whether the Applicant continued to suffer from a sprain of the hip and thigh, which was claimed to be the relevant "injury" under section 16 of the Act. If so, the court would have needed to determine if his employment contributed to these conditions and if he required medical treatment or was incapacitated for work during a specified period. Crucially, the court also had to determine if the Applicant was entitled to compensation under section 16 for the hip surgery he underwent.

The court found that the Applicant did not continue to suffer from the claimed sprain of the hip and thigh. Consequently, it was unnecessary to answer the subsequent questions regarding the contribution of his employment or his need for medical treatment and incapacity for work. The court reasoned that because the condition did not meet the definition of an "injury" under section 16 of the Act, Comcare was not liable to compensate the Applicant for the hip surgery, as the treatment was not administered with respect to an injury that arose out of or in the course of his employment.

In accordance with section 43(1) of the *Administrative Appeals Tribunal Act 1975* (Cth), the court affirmed the reviewable decisions dated 4 March 2016.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the basis of my finding as to the absence of liability to compensate for the claimed injury pursuant to ss 16 and 19 of the SRC Act, I find that the Respondent is not liable to compensate the Applicant under s 16 of the SRC Act for his claimed treatment of ‘operative intervention to address the labral tear and resect the CAM lesion’ as that treatment was not administered with respect to an ‘injury’ that arose ‘…out of or in the course of his employment’ with the Commonwealth.CONCLUSION I refer back to the stated issues necessary to be addressed in this matter and find as follows:Issue A(a)Does the Applicant continue to suffer from the sprain of other specified sites of hip and thigh (right) which condition is said to constitute the “injury” pursuant to s 16 of the Act? Answer: No(b)If the answer to (a) is “yes”, the next two questions become:(i)Does his employment with the Commonwealth continue to contribute to these conditions, to the requisite degree?; Unnecessary to answer; and(ii)Whether, during the period 30 October 2015 to 23 December 2016, the Applicant:(A) has a need for medical treatment; Unnecessary to answer; or(B) is incapacitated for work as a result of the sprain of other specified sites of hip and thigh (right) condition? Unnecessary to answerIssue B(a)Whether the Applicant is entitled to compensation under s 16 of the SRC Act for the abovementioned hip surgery on 19 November 2015? Answer: NoDECISION In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), I affirm the reviewable decisions dated 4 March 2016.

Ratio Decidendi

Legal Principle Established

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