Duffy and Comcare - [2003] AATA 1015

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1015
ADMINISTRATIVE APPEALS TRIBUNAL ) N2000/1371; N2001/1198
) N2002/397

GENERAL ADMINISTRATIVE DIVISION )

Re JOHN DUFFY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal P.J. Lindsay, Senior Member
Dr J. D. Campbell, Member
Date 8 October 2003
PlaceSydney

Decision
The Tribunal determines that:
(a) the determination of 17 May 2001 be set aside and in substitution therefor it is ordered that the Applicant is entitled to payment of expenses reasonably incurred in attending medical examinations on 16 August 2000, 18 October 2000, 21 February 2001 and 22 February 2001, where such expenses are quantified, actual and necessary expenses of a self employed person incurred to maintain his self employment activities whilst attending an examination pursuant to s.57 of the Safety, Rehabilitation and Compensation Act 1988. The issue is remitted to the Respondent to further assess the Applicant’s claim in this regard.

(b) the reconsideration determination of 12 February 2002 be affirmed thereby rejecting the Applicant's claim for an increase in the level of his accepted permanent impairment.

(c) the Applicant has no entitlement to weekly incapacity payments as and from 4 April 2000.

(d) Costs are awarded to the Applicant.

(sgd) P.J. Lindsay

CATCHWORDS
COMPENSATION - pre-existing degenerative disease of the lumbar spine - workplace injuries - aggravation of pre-existing condition - issue of continuing incapacity - issue of further permanent impairment – whether expenses associated with section 57 medical appointments are compensable - whether entitled to further weekly compensation payments – decision affirmed in part – decision remitted in part
Safety, Rehabilitation and Compensation Act 1988 ss 19, 20, 24, 27, 57, 62
Power v Comcare (1998) 89 FCR 514
REASONS FOR DECISION

8 October 2003 P.J. Lindsay, Senior Member

Dr J. D. Campbell, Member
1. In this application, John Duffy ("the Applicant") seeks a review of the following determinations made by Comcare ("the Respondent") pursuant to section 62 of the Safety, Rehabilitation and Compensation Act1988, namely:
(a) In matter N2000/1371: the determination made by an independent review officer dated 12 July 2000 to affirm the decision taken by the Respondent on 27 April 2000 which:
(i) awarded the Applicant the sum of $103.96 as reimbursement for wages lost as a consequence of attending an appointment for medico-legal assessment pursuant to section 57 of the Act; and
(ii) determined that the Applicant was not entitled to compensation in relation to gardening services for rental properties owned and managed by the Applicant, which the Applicant was unable to perform due to his compensable injuries.

(b) In matter N2001/1198: a reconsideration of own motion by the Respondent on 17 May 2001 which noted an earlier determination of 13 March 1995 deeming that the Applicant was able to earn, in suitable employment, an amount equal to his pre-injury earnings which equated to a nil entitlement, the result being:
(i) revocation of the Respondent's earlier determinations of 4 December 2000 and 15 March 2001 which accepted liability for incapacity payments for attending medical…

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 Duffy and Comcare

Details

AGLC: Duffy and Comcare [2003] AATA 1015
Case: [2003] AATA 1015
Decision Date: 8 October 2003

CaseChat Overview and Summary

In the matter of Duffy and Comcare, the Federal Court was tasked with resolving several contentious issues related to compensation for injuries sustained by the applicant, Mr. Duffy, in the course of his employment. The primary dispute centred on the aggravation of Mr. Duffy’s pre-existing degenerative condition of the lumbar spine, the extent of his continuing incapacity, and whether he was entitled to further permanent impairment benefits and weekly compensation payments. Additionally, the court had to determine the compensability of expenses related to medical appointments under section 57 of the Safety, Rehabilitation and Compensation Act 1988.

The legal issues that the court needed to address included the interpretation and application of relevant sections of the Safety, Rehabilitation and Compensation Act 1988, such as sections 19, 20, 24, 27, 57, and 62, in the context of Mr. Duffy's claims. Specifically, the court needed to ascertain whether Mr. Duffy’s condition constituted a continuing incapacity, whether there was further permanent impairment, and if his expenses for section 57 medical appointments were compensable. Furthermore, the court examined the appropriateness of weekly compensation payments from a certain date onward.

The court examined the evidence and legal precedents, including the decision in Power v Comcare, to reach its conclusions. It determined that the earlier decision of 17 May 2001 regarding the compensability of expenses for section 57 medical appointments should be set aside. Instead, Mr. Duffy was entitled to reimbursement of expenses incurred during specified medical examinations, provided they were actual, necessary, and quantified. This aspect of the case was remitted to the respondent for further assessment. The reconsideration determination of 12 February 2002 was affirmed, rejecting Mr. Duffy’s claim for an increase in his accepted permanent impairment. Additionally, the court found that Mr. Duffy had no entitlement to weekly incapacity payments from 4 April 2000. Costs were awarded to Mr. Duffy.

In summary, the court’s decision affirmed part of the respondent’s determination while also remitting other aspects for further assessment. The court's ruling clarified the scope of compensation available to Mr. Duffy under the Safety, Rehabilitation and Compensation Act 1988, particularly concerning medical expenses and ongoing incapacity benefits.

Orders

Orders of the court

The Tribunal determines that:

(a) the determination of 17 May 2001 be set aside and in substitution therefor it is ordered that the Applicant is entitled to payment of expenses reasonably incurred in attending medical examinations on 16 August 2000, 18 October 2000, 21 February 2001 and 22 February 2001, where such expenses are quantified, actual and necessary expenses of a self employed person incurred to maintain his self employment activities whilst attending an examination pursuant to s.57 of the Safety, Rehabilitation and Compensation Act 1988. The issue is remitted to the Respondent to further assess the Applicant’s claim in this regard.

(b) the reconsideration determination of 12 February 2002 be affirmed thereby rejecting the Applicant's claim for an increase in the level of his accepted permanent impairment.

(d) Costs are awarded to the Applicant.

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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8 October 2003	P.J. Lindsay, Senior Member
Dr J. D. Campbell, Member