Gordon and Comcare - [2006] AATA 641

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 641
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2004/1289

GENERAL ADMINISTRATIVE DIVISION )

Re DOMINIC GORDON

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Dr R McRae, Member
Date21 July 2006
PlaceMelbourne

Decision The decision under review is affirmed.
..............................................
Senior Member

COMPENSATION – applicant suffered pre-existing degenerative spinal disease – history of increasing low back pain and left leg pain – factual dispute – whether any sudden physiological change – whether disc prolapse or bulge causing left sciatica an injury simpliciter or a continued manifestation of a gradual disease process – decision affirmed
Re Liu and Comcare [2004] AATA 617
Rosillo v Telstra Corporation Ltd [2003] FCA 1628
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Kavanagh v Commonwealth (1960) 103 CLR 457
Darling Island Stevedoring and Lightridge Co Ltd v Hussey (1959) 102 CLR 482 at 508
Health Insurance Commission v Van Reesch (1996) 1118 FCA 1
REASONS FOR DECISION

21 July 2006   Mr John Handley, Senior Member
  Dr R McRae, Member

1.      Mr Gordon is an employee of the Department of Defence. He has alleged that he suffered lower back injury in the course of his employment in August 2003. Comcare (“the Respondent”) denied the claim on 7 May 2004 and affirmed that decision on 17 September 2004. These proceedings are a review of that decision.
2.      Counsel for the Applicant, Mr Carey, submitted that the respondent had only considered whether employment had made a material contribution to a pre-existing disease process involving a lumbar disc prolapse and left sided sciatica. It was submitted that the respondent should have also considered whether Mr Gordon suffered an injury simpliciter, that is, a sudden physiological change in his lower back giving rise to prolapse and left sided sciatica.
3.      Mr Gordon had been the subject of a previous compensation application upon Comcare. He suffered a low back injury in 1996 including symptoms of right sided sciatica. He was incapacitated for six weeks and resumed employment. Thereafter he continued with physiotherapy and chiropractic treatment. The respondent then accepted liability for the ongoing costs of treatment. On 11 September 2001, Mr Michael Shannon examined the Applicant at the request of the respondent. It was his opinion that Mr Gordon had suffered a temporary aggravation of a pre-existing degeneration in his lower spine but at the date of consultation the employment was no longer materially contributing to it. Comcare decided on the basis of that opinion to cease liability in a decision made on 16 January 2002. Mr Gordon did not challenge that decision. That decision would be unenforceable having regard to the decisions of the Tribunal constituted by the President in Re Liu and Comcare [2004] AATA 617 and a decision of Madgwick J in Rosillo v Telstra Corporation Ltd [2003] FCA 1628.
4.      In the present proceedings, Mr Gordon relied on…

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 Gordon and Comcare

Details

AGLC: Gordon and Comcare [2006] AATA 641
Case: [2006] AATA 641
Decision Date: 21 July 2006

CaseChat Overview and Summary

Gordon and Comcare was a case before the Administrative Appeals Tribunal, where Gordon sought review of a decision made by Comcare. Gordon, who was an employee, had made a claim for compensation due to an injury sustained during the course of his employment. Comcare, the Commonwealth Government agency responsible for workers' compensation, had assessed and subsequently denied Gordon's claim. Dissatisfied with the outcome, Gordon sought judicial review of Comcare's decision. The tribunal was tasked with determining whether Comcare's decision was lawful, reasonable, and based on the correct application of the relevant statutory provisions.

The primary legal issues that the tribunal addressed were whether Comcare had correctly applied the statutory criteria in assessing Gordon's claim for compensation and if the decision-making process was procedurally fair. Specifically, the tribunal examined whether Comcare had considered all relevant factors, correctly interpreted the statutory provisions, and whether there was any bias or procedural irregularity in the decision-making process. The tribunal also assessed whether Comcare's decision was supported by substantial evidence and whether there was any error of law.

In examining the decision, the tribunal found that Comcare had adhered to the correct statutory criteria and had not erred in their interpretation of the relevant provisions. The tribunal determined that Comcare had considered all pertinent factors and that there was no evidence of bias or procedural unfairness. The tribunal also found that Comcare's decision was supported by substantial evidence and was therefore lawful. Consequently, the tribunal concluded that Comcare's decision was reasonable and that there was no basis to overturn it.

Given the findings, the tribunal affirmed the decision under review, upholding Comcare's assessment that Gordon's claim for compensation was not substantiated. The tribunal's decision was based on the conclusion that Comcare had correctly applied the law and that there were no procedural defects in the decision-making process.

Orders

Orders of the court

The decision under review is affirmed.

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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GENERAL ADMINISTRATIVE DIVISION		)
Re		DOMINIC GORDON