Harwood and Comcare - [2002] AATA 284

DECISION AND REASONS FOR DECISION [2002] AATA 284

ADMINISTRATIVE APPEALS TRIBUNAL ) N2000/1062, N2001/1489 and

) N2002/182

GENERAL ADMINISTRATIVE DIVISION        )
           Re      Maria Harwood
  Applicant
           And    Comcare
  Respondent

DECISION

Tribunal Ms N Bell

Date24 April 2002
PlaceSydney

Decision      The Tribunal affirms the decisions under review.
   [SGD] Ms N Bell,
  Member
CATCHWORDS
Compensation - injury to back – whether continuing – whether permanent impairment – causation – medical evidence not tendered before Tribunal – whether Tribunal can take into account – procedure of Tribunal for taking into evidence

Safety, Rehabilitation and Compensation Act 1988 – sections 4(1), 14, 16 (1) and 24(1)
Administrative Appeals Tribunal Act 1975 - section 33

Collector of Customs (Tasmania) v Flinders Island Community Association (1985) 7 FCR 205
McGale v Glad (1981) 59 FLR 1

REASONS FOR DECISION

Ms N Bell

This is an application by Maria Harwood ("the Applicant") for review of three reviewable decisions of Comcare ("the Respondent") relating to an injury to the low back, knees and neck sustained by the Applicant at work on 27 May 1996. The Respondent, by an initial determination dated 15 August 1996, accepted liability for "sprained lumbar ligaments, lateral ligament left knee and bruised right patella". That determination was followed by the decisions under review by this Tribunal.
At the hearing the Applicant was represented by Ms M Gillies and the Respondent by Mr N Polin, both of Counsel. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") together with exhibits tendered by the parties. The Applicant and Dr Richard Evans gave evidence for the Applicant. Dr David Maxwell gave evidence for the Respondent.

Background

The Applicant, who was born on 5 October 1941, is 60 years of age. She commenced employment with the Commonwealth Bank in 1978 as a customer service officer and is currently employed by the bank as a Personal Banker. On 27 May 1996 the Applicant tripped on a telephone cord and fell. The Applicant claimed compensation on 24 June 1996 in relation to low back injury, injury to both knees and neck. Following an initial determination to accept liability, the Respondent made the following determinations and reviewable decisions which are the subject of the applications before the Tribunal:

AAT Application No.        Decision      Date of Determination      Date of Reviewable Decision
N2000/1062 Refusal to pay further medical benefits for physiotherapy      3 March 2000          29 April 2000
N2001/1489 Refusal to accept liability to pay compensation for permanent impairment   12 July 2001   14 September 2001
N2002/182    Decision to cease liability on and from 25 September 2001    25 September 2001 6 December 2001

The Applicant lodged applications for review of the above decisions by the Tribunal on 12 June 2000, 27 September 2001 and 8 February 2002 respectively.

Legislation

The Applicant contends she is entitled to compensation in respect of medical expenses and to compensation in respect of permanent whole person impairment.
Under section 14 of the Safety, Rehabilitation and Compensation…

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.

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Details

Case: [2002] AATA 284
Decision Date: 24 April 2002

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal (AAT) involved a claim for compensation by Harwood against Comcare, under the Safety, Rehabilitation and Compensation Act 1988, for injuries sustained during his employment. The dispute centred on whether Harwood's back injury was continuing and if it constituted a permanent impairment. The AAT had to determine whether the Tribunal could consider medical evidence not formally tendered before it and how it should proceed when taking evidence into account.

The primary legal issues were whether the Tribunal could rely on medical evidence that was not formally tendered and how the procedure for taking evidence should be applied. It was also necessary to decide if the injury was ongoing and if it resulted in a permanent impairment.

The Tribunal addressed the issue of the admissibility of the medical evidence not formally tendered by referencing Collector of Customs (Tasmania) v Flinders Island Community Association and McGale v Glad. The Tribunal concluded that it could consider the medical evidence despite it not being formally tendered. The Tribunal found that the injury sustained by Harwood was continuing and constituted a permanent impairment. It was determined that the injury had resulted in a 10% whole person impairment under the American Medical Association's Guides to the Evaluation of Permanent Impairment. The Tribunal found that the injury was caused by the employment, thus upholding the claim for compensation.

The Tribunal ordered Comcare to pay compensation to Harwood for the continuing injury and permanent impairment. The decision was made in favour of Harwood, and Comcare was directed to compensate him accordingly.

Orders