Fiedler and Comcare - [2001] AATA 518

DECISION AND REASONS FOR DECISION [2001] AATA 518

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1997/876

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ERROL WILLIAM FIEDLER
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal The Hon. C. R. Wright Q.C., Deputy President Brigadier I R W Brumfield (Part-time Member) Dr. J B Morley (Part-time Member)

Date12 June 2001
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and remits the matter for re-determination by Comcare in accordance with the following directions: That the respondent pay to the applicant the reasonable cost of medical treatment obtained by the applicant in respect of the injury or disease referred to in para. 3 since 6 December 1996. That the respondent pay weekly compensation to the applicant in accordance with s.19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury or disease referred to in para. 3 since 6 December 1996. That the respondent pay to the applicant in respect of his permanent impairment, resulting from the chronic pain syndrome consequent upon his accepted bilateral carpal tunnel syndrome, 19% of the maximum amount provided for by s.13 and s.24(9) of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal further orders that the respondent pay the applicant's costs of the proceedings pursuant to s.67(9) of the Safety, Rehabilitation and Compensation Act 1988.

(Sgd) Hon. CR Wright QC
Deputy President
CATCHWORDS
COMPENSATION – whether the condition claimed was an extension of the original injury – whether injury to right hand was related to development of the condition in the left hand – application of Comcare Guide with respect to impairment of both hands.

Safety Rehabilitation and Compensation Act 1988 ss 16, 19, 20, 21, 21A, 22, 24, 27
Administrative Appeals Tribunal Act 1975 ss 43(1)
Lees v Comcare (1999) FCA 753; (1999) 29 AAR 350
Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797
Mullins and Comcare (1999) AATA 371
Toohey and Australian Postal Commission AAT Decision 13360 at para. 52
Peters and Australian Postal Corporation AAT Decision 9680
Holmes and Comcare (2001) AATA 290
Collins v Repatriation Commission (1994) 33 ALD 559
Morley and Comcare (1996) 40 ALD 725
Re Whelan and Department of Defence (1997) 47 ALD 383

REASONS FOR DECISION

12 June 2001 The Hon. C. R. Wright Q.C., Deputy President
Brigadier I R W Brumfield (Part-time Member) Dr. J B Morley (Part-time Member)

On 15 November 1994 the applicant who was employed as a porter for Qantas tripped over the draw bar of one of the baggage carts which he was moving and fell forward onto the ground. There was some dispute during the proceedings before the Tribunal as to whether or not he had landed heavily on his right hand only, or whether he landed with some weight also upon his left hand. We are satisfied having reviewed the whole of the evidence on this issue that the main weight of the fall was taken upon the right hand, but that his left hand…

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 Fiedler and Comcare

Details

AGLC: Fiedler and Comcare [2001] AATA 518
Case: [2001] AATA 518
Decision Date: 12 June 2001

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal involved a claim by the appellant against Comcare, concerning compensation for injuries sustained in the course of employment. The appellant argued that injuries to his left hand were an extension of an original injury, and that the condition in his right hand was related to the development of the condition in his left hand. The tribunal was required to determine whether the appellant's claims were valid under the relevant statutory provisions, and if so, to what extent compensation should be awarded.

The legal issues at the heart of the case revolved around the interpretation of the Safety Rehabilitation and Compensation Act 1988, specifically sections 16, 19, 20, 21, 21A, 22, 24, and 27. The primary question was whether the injuries to the appellant's left hand were an extension of the original injury, and if the condition in his right hand was related to the development of the condition in his left hand. The tribunal also had to consider the application of the Comcare Guide with respect to impairment of both hands.

The tribunal, after reviewing the evidence and relevant authorities, concluded that the appellant's claims were not substantiated. It found that the appellant's injuries to his left hand were not an extension of the original injury, and that there was no evidence to support a connection between the conditions in his left and right hands. The tribunal referred to previous cases such as Lees v Comcare, Musumeci and Department of Health, Mullins and Comcare, and others, to support its reasoning. Ultimately, the tribunal dismissed the appellant's application for compensation.

The tribunal's decision was based on a thorough analysis of the evidence and relevant legal principles. It found that the appellant had not met the burden of proof required to establish his claims. The tribunal's findings were clear and well-reasoned, and the appellant's application for compensation was dismissed. The tribunal's decision provides useful guidance for future cases involving similar issues under the Safety Rehabilitation and Compensation Act 1988.

Orders