Hill and Comcare - [2004] AATA 982

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 982
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1955

GENERAL ADMINISTRATIVE DIVISION )

Re

CHARLES HILL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal
Ms G Ettinger - Senior Member

Date21 September 2004
PlaceSydney

Decision
The Administrative Appeals Tribunal sets aside the decision of Comcare, the Respondent in these proceedings, dated 14 October 2003 which affirmed the decision of Comcare dated 1 August 2003 to deny liability for the compensation claim of the Applicant, Mr Charles Hill pursuant to the Safety Rehabilitation and Compensation Act 1988, and in substitution finds that Comcare is liable for the injuries Mr Hill sustained in a fall on 4 November 2002.

Costs are awarded pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and pursuant to the Tribunal’s Practice Direction.

[Sgd] Ms G Ettinger
Senior Member

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;
...
“injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
…
4.(3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a)
compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b)
it was reasonable for the employee to have obtained that medical treatment in the circumstances.”

6. In section 5(9) of the Act, unless the contrary intention appears:
“A reference to an employee in a provision of this Act that applies to an employee at a time after Comcare, an administering authority, a licensed authority or a licensed corporation has incurred a liability in relation to the employee under this Act includes, unless the contrary intention appears, a reference to a person who has ceased to be an employee.”

7. Section 14(1) of the Act provides for compensation in cases of injury as follows;
“14 Compensation for injuries
14(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or…

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: [2004] AATA 982
Decision Date: 21 September 2004

CaseChat Overview and Summary

Mr Charles Hill, the Applicant, appealed against a decision by Comcare, the Respondent, to deny his claim for compensation for an injury sustained during employment. The dispute was heard by the Administrative Appeals Tribunal. The Applicant, a former Commonwealth employee, claimed that he became virtually blind in his left eye and experienced issues with his right eye following a fall at work on 4 November 2002. He argued that his injuries arose out of his employment and were compensable under the Safety Rehabilitation and Compensation Act 1988.

The legal issues before the Tribunal centred on whether Comcare, as the insurer, was liable for the Applicant's injuries. The Tribunal had to consider the extent to which Comcare's actions in providing spectacles related to the compensable injury. Specifically, the Tribunal had to determine if Comcare's provision of spectacles constituted a reasonable medical expense and if the subsequent fall in 2002 arose out of this compensable injury.

The Tribunal found that the Applicant's claim was valid. Comcare had accepted liability for the Applicant's eye injury and had made incapacity payments until his retirement. The Tribunal held that Comcare's payment for spectacles was a reasonable medical expense related to the compensable injury. The Tribunal concluded that the Applicant's subsequent fall in 2002 arose out of this compensable injury, as it was linked to the provision of spectacles by Comcare. The decision denying liability was set aside, and Comcare was found liable for the injuries sustained by Mr Hill.

The Tribunal ordered that the decision of Comcare dated 14 October 2003, which affirmed the decision of Comcare dated 1 August 2003 to deny liability for Mr Hill's compensation claim, was set aside. The Tribunal found Comcare liable for the injuries Mr Hill sustained in the fall on 4 November 2002. Additionally, costs were awarded in accordance with the provisions of the Safety Rehabilitation and Compensation Act 1988 and the Tribunal's Practice Direction.

Orders

Orders of the court

The Administrative Appeals Tribunal sets aside the decision of Comcare, the Respondent in these proceedings, dated 14 October 2003 which affirmed the decision of Comcare dated 1 August 2003 to deny liability for the compensation claim of the Applicant, Mr Charles Hill pursuant to the Safety Rehabilitation and Compensation Act 1988, and in substitution finds that Comcare is liable for the injuries Mr Hill sustained in a fall on 4 November 2002.

Costs are awarded pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and pursuant to the Tribunal’s Practice Direction.

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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