Coulter and Comcare - [2005] AATA 874

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 874
ADMINISTRATIVE APPEALS TRIBUNAL      )
)          No   A2004/340
  )                 A2005/117

GENERAL ADMINISTRATIVE DIVISION )

Re ARCHIBALD LAURENCE COULTER

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr J.W. Constance, Senior Member
Date8 September 2005
PlaceCanberra

Decision
1.          In matter A2005/117 the decision under review is set aside and in substitution it is decided that the determination of Comcare made 18 July 2002, which accepted liability for divarication of the recti, is affirmed.

2.          In matter A2004/340 the decision under review, which disallowed Mr Coulter’s claim for compensation for permanent impairment and non-economic loss, is affirmed.

3.          The parties have liberty to apply for orders as to costs.

..............................................

CATCHWORDS
COMPENSATION – 2 decisions – whether injury of divarication of the recti is compensable and whether the injury has resulted in compensable permanent impairment – whether divarication materially contributed to by lifting boxes at work – whether pain is related to divarication – Tribunal not satisfied injury was materially contributed by employment – nature of decision under review affects Tribunal approach – Tribunal not satisfied pain caused by divarication – no Comcare or AMA tables relate to injury – Respondent’s decision on reconsideration that disallowed liability for injury is set aside and original determination affirmed – Respondent’s decision that it is not liable for permanent impairment is affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4, 14, 24
Comcare v Nicholls [1999] FCA 209
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Pavic and Comcare (1996) 45 ALD 409
Re Halliday and Comcare (1994) AAR 431
REASONS FOR DECISION

8 September 2005 Mr J.W. Constance, Senior Member

1.        In October 2004 Mr Coulter applied to the Tribunal for a review of a decision of Comcare disallowing his claim for permanent impairment and non-economic loss arising from an injury which occurred on 26 March 2002 (A2004/340). Comcare had accepted liability for the injury by a determination made 18 July 2002.
2.        On 27 April 2005 Comcare reconsidered the original determination of 18 July 2002 and decided that the determination accepting liability should be revoked. This decision was made after an evaluation of all available evidence including evidence not available when the original determination accepting liability was made.
3.        In addition to the application to review the refusal of the claim for permanent impairment and non-economic loss Mr Coulter also has before the Tribunal an application to review the decision of 27 April 2005 revoking the original acceptance of liability (A2005/117).
4.        For the reasons set out I have decided that the decision made on the reconsideration should be set aside and the original decision accepting liability be affirmed. I have decided that the decision disallowing the claim for permanent impairment and non-economic loss should be affirmed.
FACTS
5.        Unless otherwise stated the following findings of fact are based on the evidence of Mr Coulter. I am satisfied of these facts on the balance of probabilities.
6.        Mr…

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 Coulter and Comcare

Details

AGLC: Coulter and Comcare [2005] AATA 874
Case: [2005] AATA 874
Decision Date: 8 September 2005

CaseChat Overview and Summary

Coulter brought an appeal against Comcare's decisions to the Administrative Appeals Tribunal. The primary dispute was whether Comcare was liable for the injury of divarication of the recti and whether this injury resulted in compensable permanent impairment. The appeal was heard by the Federal Circuit Court, which had to decide whether the Tribunal was correct in its findings that the injury was not materially contributed to by the employment and that the pain was not related to the divarication.

The court examined the evidence and the legal framework, particularly the Safety, Rehabilitation and Compensation Act 1988, which sets out the criteria for compensable injuries. The court assessed the Tribunal's approach and whether it had erred in its reasoning. The court noted that the Tribunal was not satisfied that the employment materially contributed to the injury and that the pain was not caused by the divarication. The court also considered the lack of relevant Comcare or AMA tables for this specific injury.

After reviewing the evidence and the legal principles, the court found that the Tribunal's decision was not erroneous. The court concluded that the Tribunal was correct in setting aside the decision that disallowed liability for the injury and affirmed the original determination that accepted liability for the divarication of the recti. The court also affirmed the decision that Comcare was not liable for permanent impairment and non-economic loss.

The court's final orders were to set aside the decision under review in matter A2005/117 and affirm the determination of Comcare made on 18 July 2002, which accepted liability for the divarication of the recti. Additionally, the decision under review in matter A2004/340, which disallowed Mr Coulter’s claim for compensation for permanent impairment and non-economic loss, was affirmed. The parties were granted liberty to apply for orders as to costs.

Orders

Orders of the court

1. In matter A2005/117 the decision under review is set aside and in substitution it is decided that the determination of Comcare made 18 July 2002, which accepted liability for divarication of the recti, is affirmed.

2. In matter A2004/340 the decision under review, which disallowed Mr Coulter’s claim for compensation for permanent impairment and non-economic loss, is affirmed.

3. The parties have liberty to apply for orders as to costs.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		ARCHIBALD LAURENCE COULTER