Ellison and Comcare (Compensation) [2020] AATA 698 (2 April 2020)
Division:GENERAL DIVISION
File Number: 2018/3084
Re: DAVID ELLISON
APPLICANT
COMCAREAnd
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:2 April 2020
Place:Melbourne
The Tribunal affirms the decision under review.
.................[sgd]................................
Member K. Parker
Catchwords
WORKERS’ COMPENSATION – “ceased effects” determination – claim for payment of medical expenses and incapacity payments under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – applicant suffered from an underlying degenerative lumbar spine disease prior to 2009 – claim made by applicant for back injury suffered as a result of a specific incident on 21 April 2009 – Comcare accepted liability under s 14 for “lumbar sprain” – Comcare misdescribed compensable injury – Tribunal found that compensable injury was an aggravation of applicant’s underlying disease – effects of compensable injury ceased to exist as from 11 January 2018 to the present time and at the present time – ongoing symptoms after 11 January 2018 arose from effects of applicant’s underlying disease – non-binding observation made that underlying disease was contributed to, to a significant degree, by the general nature and conditions of applicant’s employment with the employer from 2002 to 2009 – scope of applicant’s claim did not extend to this injury – Tribunal did not have jurisdiction to make decision awarding payment of compensation under s 16 or s 19 to applicant in respect of ongoing effects of the underlying disease after 11 January 2018 – applicant at liberty to make further claim in respect of underlying degenerative disease – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, 5A, 5B, 6, 14, 16, 19, 54.
Cases
Abrahams v Comcare (2006) 93 ALD 147
Australian Postal Corporation v Trevor Arthur Nadge [1994] FCA 1163
Brackenreg v Comcare (2010) 187 FCR 2092009
Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163
Comcare v Muir (2016) 150 ALD 321
Comcare v Power (2015) 238 FCR 187
Cory Brothers & Co Ltd v Hughes [1911] 2 KB 738
Re Durham and TNT Australia Pty Ltd (2011) 124 ALD 136
F&T Grassi Pty Ltd v Ellendale Estate Pty Ltd [1985] WAR 294
Lang v Comcare (2007) 94 ALD 141
McDonald v Director-General of Social Security (1984) 1 FCR 354
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Phillips v The Commonwealth [1964] 110 CLR 347
Reitano v Commonwealth of Australia (1985) 9 ALN N201
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157
Szabo v Comcare [2012] FCAFC 129
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
The Commonwealth v Muratore [1978] 141 CLR 296REASONS FOR DECISION
Member K. Parker
2 April 2020
This application is about whether the Applicant, Mr David Ellison, is entitled to receive incapacity payments and payment of medical expenses under ss 19 and 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act)…
Continue reading Ellison and Comcare (Compensation)
Sign in free to access the full text
- AGLC
- Ellison and Comcare (Compensation) [2020] AATA 698
- Case
- [2020] AATA 698
- Decision Date
CaseChat Overview and Summary
The Tribunal was tasked with determining whether Comcare had misdescribed the diagnosis of the compensable injury sustained by Mr Ellison on 21 April 2009. Furthermore, it needed to ascertain whether the effects of this compensable injury had ceased to exist from 11 January 2018 to the present. If the effects of the compensable injury had ceased, the Tribunal also had to consider whether the conditions for entitlement to compensation under sections 16 and 19 of the Act were met during that period, specifically whether claimed medical treatment was reasonable and the amounts appropriate, and whether Mr Ellison was incapacitated for work as a result of the injury.
The Tribunal found that Comcare had indeed misdescribed the compensable injury, which it determined to be an aggravation of Mr Ellison's underlying degenerative lumbar spine disease, rather than a simple "lumbar sprain." However, the Tribunal concluded that the effects of this specific compensable injury had ceased to exist as from 11 January 2018. It reasoned that any ongoing symptoms experienced by Mr Ellison after this date arose from the effects of his pre-existing underlying degenerative disease, not the aggravation caused by the 2009 incident. The Tribunal noted, without binding effect, that the underlying disease may have been significantly contributed to by the general conditions of his employment between 2002 and 2009. Crucially, the scope of Mr Ellison's claim did not extend to this underlying disease, and therefore, the Tribunal lacked jurisdiction to award compensation under sections 16 or 19 for its ongoing effects after 11 January 2018. The Tribunal affirmed Comcare's decision, while also observing that Mr Ellison was at liberty to make a further claim specifically in respect of his underlying degenerative disease.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.