Elliott and Comcare - [2001] AATA 305

CATCHWORDS – COMPENSATION – psoriatic arthritis – military service – whether employment aggravated medical conditions – whether injury suffered as an unintended consequence of medical treatment provided by employer – whether incapacity suffered – employment and treatment not contributing factors to aggravation or acceleration of disease – applicant did not suffer a compensable injury – "as a consequence of" – medical conditions not a consequence or unintended consequence of treatment provided – decision affirmed.

Commonwealth Employees' Compensation Act 1930
Commonwealth Workmen's compensation Act 1912
Compensation (Commonwealth Government Employees') Act 1971 – ss 5, 29, 124(1A)
Workers Compensation Act 1926 (NSW)
Safety, Rehabilitation and Compensation Act 1988 – ss – 4, 6A, 14, 124(1A)
Veterans' Entitlements Act 1986

American Home Assurance Co v Saunders (1987) 11 NSWLR 363; (1987) 4 ANZ Ins Cas 60-814
Australian Telecommunications Commission v Treloar (1989) 90 ALR 202; (1989) 11 AAR 69
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Behan v Australian Telecommunications Corporation (1990) 26 FCR 337; (1990) 99 ALR 79; (1990) 22 ALD 545; (1990) 12 AAR 466
Casarotto v Australian Postal Commission (1989) 86 ALR 399; (1989) 17 ALD 321; (1989) 10 AAR 191
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] ALR 1031; (1964) 38 ALJR 64
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537; (1967) 41 ALJR 146
O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154; (1987) 13 ALD 234
Repatriation Commission v Bendy (1989) 18 ALD 144; (1989) 10 AAR 323

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q 2000/430
GENERAL ADMINISTRATIVE DIVISION      )

Re MALCOLM HAROLD ELLIOTT

Applicant

And COMCARE

Respondent

DECISION AND REASONS FOR DECISION [2001] AATA 305

Tribunal  Miss S A Forgie (Deputy President)
  Dr K P Kennedy (Member)
  Miss A M Brennan (Member)

Date 12 April, 2001

Place Brisbane

DecisionThe Tribunal affirms the decision of the respondent dated 15 January, 1997.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 6 February, 1997, the applicant, Mr Malcolm Harold Elliott, applied for review of a reviewable decision made by a delegate of the respondent, Comcare. That decision, which was dated 15 January, 1997, revoked an earlier determination dated 21 November, 1996 that Comcare did not accept liability for compensation for Mr Elliott's left and right foot condition. In its place, it substituted a decision with two limbs. The first limb was that liability was accepted by Comcare for compensation in respect of temporary aggravation of psoriatic arthritis. The second was that its liability ceased upon Mr Elliott's discharge from the Australian Army on the basis that the aggravation ceased upon his discharge from the army. Comcare's decision was reviewed by a differently constituted Tribunal in a decision dated 26 August, 1999. Comcare lodged an appeal against that Tribunal's decision and, by consent, the Federal Court remitted the matter to be reconsidered.

At the hearing, Mr Elliott was represented by Mr Hume of counsel and Comcare was represented by Miss Ford of counsel. The…

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 Elliott and Comcare

Details

AGLC: Elliott and Comcare [2001] AATA 305
Case: [2001] AATA 305
Decision Date: 12 April 2001

CaseChat Overview and Summary

This case involved a claim for compensation by Mr Malcolm Harold Elliott for injuries suffered during his service in the Australian Army, specifically for conditions related to psoriasis and psoriatic arthritis. The main legal issues were whether his employment aggravated his conditions and whether he suffered an injury as an unintended consequence of medical treatment provided by the Commonwealth. The court found that neither his employment nor the medical treatment contributed to the aggravation or acceleration of his conditions. The court concluded that the progression of Mr Elliott's psoriatic arthritis was a natural progression of his psoriasis and not due to his military service or the treatment he received. Therefore, he did not suffer a compensable injury. The decision of Comcare, the respondent, was affirmed.

Orders