Fyfe and Comcare - [2000] AATA 769

DECISION AND REASONS FOR DECISION [2000] AATA 769

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/414

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PAUL FYFE
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE
Air Marshal I.B. Gration (Member)

Date1 September 2000
PlaceCanberra

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
COMPENSATION - back injury – aggravation – whether temporary increase in pain symptoms is an aggravation – aggravation considered – application of section 48 of the Safety Rehabilitation and Compensation Act 1988 – whether receipt of common law damages prevents recovery in respect of aggravation
Safety Rehabilitation and Compensation Act 1988 s.48
Telstra Corporation Limited v Barrow (1994) 19 AAR 523
Casarotto v Australian Postal Commission (1988) 10 AAR 191
Re Doherty and Comcare (AAT 10454, 6 October 1995)
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Workers' Compensation Board (Queensland) v Technical Products Pty Ltd [1988] 165 CLR 642
McIntyre v Comcare (1998) 50 ALD 416
Telstra Corporation Limited v Barrow (1994) 19 AAR 523

REASONS FOR DECISION

1 September 2000 Senior Member J.A. Kiosoglous MBE Air Marshal I.B. Gration (Member)

This is an application by Mr Paul Fyfe (the applicant) for review of a decision of a review officer of the respondent dated 5 October 1999 (T111), which affirmed a decision of a delegate of the respondent dated 23 December 1998 (T98) denying liability in respect of a claimed aggravation of lumbar spine injury.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T111), together with twelve exhibits, seven lodged by the applicant (Exhibits A1-A7) and five lodged by the respondent (Exhibits R1-R5). In addition, the Tribunal heard evidence from the applicant, who also called Dr F. Tomlinson, Neurosurgeon and Dr R. Garsia, General Practitioner. The respondent called Dr J. Cameron, Consultant Neurologist, as a witness. The applicant was represented by Mr D. O'Gorman and the respondent was represented by Mr D. O'Donovan, both of counsel.
The issues before the Tribunal are whether or not the applicant is barred from seeking compensation as a result of the application of section 48(4) of the Safety Rehabilitation and Compensation Act 1988 (the Act); and if not, whether the applicant suffered a compensable aggravation of a lumbar spine condition in or about October 1995.
history of the application
The applicant was involved in a motor vehicle accident during the course of his employment with the Australian Federal Police (AFP) on 29 November 1992 ("the 1992 accident"). Liability for this incident was accepted by the respondent in respect of upper lumbar back and neck pain on 24 December 1992 (T6) and subsequently extended to include lower back pain.
The applicant accepted a redundancy offer from the AFP in June 1993.
The applicant commenced common law proceedings in the ACT Supreme Court on 20 October 1993 (T13), particulars of which were lodged in April…

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 Fyfe and Comcare

Details

AGLC: Fyfe and Comcare [2000] AATA 769
Case: [2000] AATA 769
Decision Date: 1 September 2000

CaseChat Overview and Summary

The case of Fyfe v Comcare involved a dispute between the applicant, Mr Fyfe, and the respondent, Comcare, regarding compensation for an aggravation of a back injury. The matter was heard by the Administrative Appeals Tribunal (AAT). The central issue was whether Mr Fyfe's temporary increase in pain symptoms in October 1995 constituted an aggravation of his pre-existing back injury, and if so, whether he was entitled to compensation under section 48 of the Safety Rehabilitation and Compensation Act 1988. Additionally, the court had to determine whether Mr Fyfe's receipt of common law damages precluded him from claiming compensation under the Act.

The Tribunal carefully considered the evidence, including medical reports and the applicant's own testimony. Medical experts provided differing opinions on whether the 1995 incident represented a distinct injury or a temporary aggravation of the pre-existing condition. Dr. Tomlinson argued that the October 1995 incident was a distinct injury due to the effects of vibration, while Dr. Cameron and Dr. Garsia considered it a temporary aggravation of the chronic condition stemming from the 1992 accident. The Tribunal also noted that Mr Fyfe had received common law damages for the period around the 1995 incident but did not disclose this to Comcare due to a confidentiality order.

In its decision, the Tribunal concluded that the October 1995 incident did not represent a distinct injury but rather a temporary aggravation of the pre-existing back condition. Consequently, section 48 of the Act applied, and Mr Fyfe was not entitled to compensation for the aggravation. The Tribunal further found that the receipt of common law damages did not preclude him from claiming compensation under the Act, but in this case, the aggravation did not warrant additional compensation. The Tribunal affirmed the decision under review, upholding the respondent's position.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

He stated that his intention in the common law proceedings was to recover damages for the period in 1995 and thereabouts. He further stated that he asked for the settlement to remain confidential because he did not want his work colleagues to find out how much money he had received, and knew that they would search the databases to find out, given their knowledge of compensation matters. He considered that he was then in a quandary in so far as informing Comcare of the settlement details, because he considered himself to be bound by the ACT Supreme Court confidentiality order. medical evidencedr f. tomlinson Dr F. Tomlinson, Neurosurgeon, has seen the applicant on a number of occasions and prepared four reports in relation to the applicant. In a report dated 28 July 2000 (Exhibit A5) he stated (inter alia):"…5. If it was necessary on 19.10.1995 for Mr Fyfe to sit in the motor vehicle for a period of greater than five hours, then I believe that the injuries and disabilities of 19.10.1995 can be categorised as a distinct injury from those sustained in the motor vehicle accident of 1992." In oral evidence, in support of his reports, he stated that he considered the October 1995 incident to be distinct, as it was a problem caused by the effects of vibration, which was quite different to the traumatic injury sustained in 1992. He considered that the mechanisms involved were quite distinct, and as such they were separate injuries. He considered that driving over five hours' duration for a person predisposed to back pain would be more likely than not to cause back pain. He could not say whether the applicant would have sustained problems in the October 1995 incident if not for the 1992 accident. He stated that this particular journey was adverse and out of the ordinary, in that the car was different and problematic, and he considered that, given the applicant sought medical attention the following day, there was a real phenomenon at work. He stated that there is no record in his notes of the Oakey trip, and that he first recorded it in 1998. dr r. garsia Dr R. Garsia has been the applicant's General Practitioner since February 1995. In oral evidence, he stated that the applicant's back problem related to the 1992 accident, and that he did not focus upon the October 1995 incident, as it was part of the ongoing aggravation felt by the applicant from time to time. He deciphered his notes for 25 October 1995 as "Back pain has improved a lot with physio, still needs a little more on Friday" and for 3 November 1995 as "back is hurting again, he has sciatica, SLR is restricted to about 85%. He apparently missed his footing and had a jolt.".dr j. cameron Dr J. Cameron, Consultant Neurologist, saw the applicant on 17 May 1996 and prepared two reports dated 22 May 1996 (T40) and 6 April 2000 (Exhibit R2). In the latter he stated (inter alia):"…The description of event which occurred on 20.10.95 are typical of a transient aggravation of a chronic pre-existing back condition with nerve root irritation. The aggravation seemed to improve over a 5 day period. I would not regard this as a new injury. I would regard it as a temporary aggravation of an underlying, pre-existing condition.…The pain Mr. Fyfe experienced in October, 1995 would have been very unlikely to have occurred had he not suffered a back injury in 1992. Therefore, one would have to conclude that the 1995 event was ultimately caused by the 1992 event.I would not conclude that the event in October, 1995 was a separate injury.…"

Decision

Reasons for decision

Accordingly, section 48 of the Act applies in this case, and the Tribunal finds that compensation is not payable pursuant to the Act in respect of the October 1995 aggravation. decision For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review. I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE and Air Marshal I.B. Gration (Member)Signed: ....................Signed......................................................... Personal AssistantDate/s of Hearing 3 & 4 August 2000 Date of Decision 1 September 2000Counsel for the Applicant Mr D. O'Gorman Solicitor for the Applicant Howes Powrie Rowe Counsel for the Respondent Mr D. O'Donovan Solicitor for the Respondent AGS

Ratio Decidendi

Legal Principle Established

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