Cudmore and Comcare - [2005] AATA 1221

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 1221
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/190, A2004/192

GENERAL ADMINISTRATIVE DIVISION )

Re KIM CUDMORE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal JW Constance, Senior Member
Date12 December 2005
PlaceCanberra

Decision The decision of Comcare made on 23 June 2004, that as at 27 April 2004 Ms Cudmore is not entitled to compensation for medical expenses and incapacity and is not entitled to compensation for permanent impairment, is affirmed.
..............................................
Senior Member

CATCHWORDS
COMPENSATION – injury to right wrist – permanent impairment – incapacity – causation – medical treatment – absence of medical diagnosis – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 s 16, 19, 24
Cassarotto v Australian Postal Commission (1989) 86 ALR 399
Comcare Australia v Amorebieta [1996] FCA 312
Hannaford v Telstra Corporation Limited [2005] FCA 1298
Medlin v State Government Insurance Commission (1994-1995) 182 CLR 1 at 6
REASONS FOR DECISION
INTRODUCTION
1.      In 1993 Ms Cudmore began to experience a “very mild aching” in her right wrist which she associated with her duties as a Counter Officer with the Department of Social Security. Subsequently, Comcare accepted liability for an injury being “a strain to the right wrist”.
2.      Surprisingly, Ms Cudmore made few claims for compensation in respect of the injury, even though she says she worked part time in 1996, 1997 and 1998 partly as a result of incapacity caused by the injury. Her employment by the Department ended in 1998.
3.      In 2003 Ms Cudmore claimed compensation for medical expenses and incapacity for work resulting from the injury. She also made a claim for compensation for permanent impairment resulting from the same injury. These claims were rejected by Comcare. For the reasons which follow I have decided that the decision of Comcare will be affirmed.
THE ISSUES
4.      The issues for determination are:
A.Has the injury suffered by Ms Cudmore (being a strain to the right wrist) “resulted in” permanent impairment?
B.If so, what is the nature of that impairment?
C.If so, is the impairment permanent?
D.If so, what is the degree of the permanent impairment?
E.Has medical treatment been obtained by Ms Cudmore in relation to the injury?
F.Has Ms Cudmore been incapacitated for work as a result of the injury?

FACTS
5. Ms Cudmore joined the Australian Public Service in 1986. In 1993 her position as a Counter Officer involved dealing with members of the public and included writing and data entry duties. She is right-handed.
6. During a period of about 2 months around May and June 1993 Ms Cudmore felt “a very mild aching” in her right wrist when she was writing. In June 1993, whilst at work, Ms Cudmore bumped her right elbow on a table. She immediately felt a shooting pain from her elbow to her hand. Following this incident the pain in her wrist worsened to what she described as “a dull ache” which she experienced…

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 Cudmore and Comcare

Details

AGLC: Cudmore and Comcare [2005] AATA 1221
Case: [2005] AATA 1221
Decision Date: 12 December 2005

CaseChat Overview and Summary

The applicant, Ms Cudmore, sought review of a decision made by the respondent, Comcare, which held that she was not entitled to compensation for medical expenses, incapacity, and permanent impairment following an injury to her right wrist. The dispute was heard and determined by the Federal Circuit Court of Australia. The central issues for the Court were whether Ms Cudmore was entitled to compensation for medical expenses, incapacity, and permanent impairment, and if not, whether the decision of Comcare was legally sound.

The Court considered whether there was sufficient evidence to support a finding that Ms Cudmore's right wrist injury led to a permanent impairment that caused incapacity. It was noted that there was no medical diagnosis confirming the nature of the injury or its impact on her capacity to work. Additionally, the Court examined whether the absence of a medical diagnosis precluded a finding of permanent impairment and incapacity. The Court referenced previous cases to assist in its analysis of these issues, including Cassarotto v Australian Postal Commission, Comcare Australia v Amorebieta, Hannaford v Telstra Corporation Limited, and Medlin v State Government Insurance Commission.

In reaching its decision, the Court found that the absence of a medical diagnosis was a significant impediment to establishing a causal link between the injury and any resulting incapacity or permanent impairment. The Court concluded that Comcare's decision was legally correct, as there was insufficient evidence to support a finding that Ms Cudmore's injury resulted in permanent impairment or incapacity. The Court affirmed Comcare's decision, holding that Ms Cudmore was not entitled to compensation for medical expenses, incapacity, or permanent impairment.

The Court's decision was unequivocal, affirming Comcare's earlier decision. This conclusion was based on the absence of a medical diagnosis and the lack of evidence to support a finding of permanent impairment or incapacity. As a result, the Court did not make any further orders beyond affirming the decision of Comcare.

Orders

Orders of the court

The decision of Comcare made on 23 June 2004, that as at 27 April 2004 Ms Cudmore is not entitled to compensation for medical expenses and incapacity and is not entitled to compensation for permanent impairment, is affirmed.

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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