Hovenden and Comcare (Compensation) - [2020] AATA 3695

Hovenden and Comcare (Compensation) [2020] AATA 3695 (21 September 2020)
Division:GENERAL DIVISION
File Number:2019/1653
Re:Damian Hovenden
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member R West
Date:21 September 2020
Place:Melbourne

The Tribunal affirms the decision under review.
.....[sgd]...................................................................
Member R West
Catchwords
WORKER COMPENSATION – s 14 of the Safety, Rehabilitation and Compensation Act 1988 – degenerative spinal condition – symptoms of tightness and pain – whether aggravation of an ailment – not a disease or an injury – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
Administrative Appeals Act 1975
Cases
Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Balacki v Comcare [2013] AATA 768
Asioty v Canberra Abattoirs Pty Ltd (1989) 167 CLR 533
Re Commonwealth of Australia v Beattie [1981] FCA 88
Australian Postal Corporation v Bessey [2001] FCA 266
REASONS FOR DECISION
Member R West
21 September 2020

This matter concerns an application for the review of a decision of a delegate of the Respondent dated 20 March 2019 to affirm a determination dated 8 February 2019 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) for the Applicant’s condition of chronic low back pain or aggravation of chronic low back pain.
BACKGROUND
The Applicant is employed as a Customer Service Officer with Services Australia, having commenced the employment on 9 April 2006.[1]
[1] T12.
On 27 November 2001, the Applicant sustained an injury to his lower back while employed as a part-time process worker with Pasta Master, a food processing company.[2] Liability for the injury was accepted by the insurer under the Victorian Workcover scheme and the Applicant was compensated for his incapacity and medical expenses.[3]
[2] Tribunal Book, p 279.
[3] Ibid.
On 11 December 2018, the Applicant submitted a claim under s 14 of the Act for compensation related to an alleged exacerbation of the symptoms of his lower back condition while serving a customer on 26 November 2018.[4] The Applicant attributed the cause of the injury to the fact that his workstation was lower than requirement needed[5].
[4] T7.
[5] T7, p 14.
A delegate of the Respondent denied liability under s 14 of the Act on 8 February 2019.[6] This decision was affirmed by another delegate of the Respondent on 20 March 2019.[7] The Applicant lodged an application for a review of this decision by the Tribunal on 26 March 2019.[8]
[6] T21.
[7] T27.
[8] T1.
A hearing in relation to the review was held by audio/visual link on 7 July 2020. The Applicant was self-represented. The Respondent was represented by Mr Ray Ternes of counsel.
The hearing was conducted in the context of restrictions placed on the community in response to the COVID-19 pandemic. These restrictions necessitated that the hearing be conducted without the parties attending in person or that…

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 Hovenden and Comcare (Compensation)

Details

AGLC: Hovenden and Comcare (Compensation) [2020] AATA 3695
Case: [2020] AATA 3695
Decision Date: 21 September 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of Comcare to deny the Applicant compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for chronic low back pain or an aggravation of that condition. The Applicant, employed as a Customer Service Officer since 2006, had a pre-existing lower back injury sustained in 2001 for which liability was accepted under the Victorian Workcover scheme. The Applicant claimed that while serving a customer on 26 November 2018, his workstation being lower than required aggravated his pre-existing condition, leading to symptoms of tightness and pain.

The Tribunal was required to determine whether the tightness and pain experienced by the Applicant on and after 16 November 2018 constituted an "injury" as defined by the Act. This involved considering whether the Applicant's symptoms amounted to a disease or an injury, and if so, whether the circumstances of his employment on 26 November 2018 caused or contributed to that injury.

The Tribunal reasoned that the Applicant's symptoms of tightness and pain, while acknowledged, did not meet the definition of an "injury" under the Act. It found that the Applicant had not established that his condition was a disease or an injury in the statutory sense. Consequently, the Tribunal was not satisfied that the symptoms experienced by the Applicant constituted an injury for which Comcare would be liable. The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

This matter concerns an application for the review of a decision of a delegate of the Respondent dated 20 March 2019 to affirm a determination dated 8 February 2019 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) for the Applicant’s condition of chronic low back pain or aggravation of chronic low back pain.BACKGROUND The Applicant is employed as a Customer Service Officer with Services Australia, having commenced the employment on 9 April 2006.[1][1] T12. On 27 November 2001, the Applicant sustained an injury to his lower back while employed as a part-time process worker with Pasta Master, a food processing company.[2] Liability for the injury was accepted by the insurer under the Victorian Workcover scheme and the Applicant was compensated for his incapacity and medical expenses.[3][2] Tribunal Book, p 279.[3] Ibid. On 11 December 2018, the Applicant submitted a claim under s 14 of the Act for compensation related to an alleged exacerbation of the symptoms of his lower back condition while serving a customer on 26 November 2018.[4] The Applicant attributed the cause of the injury to the fact that his workstation was lower than requirement needed[5].[4] T7. [5] T7, p 14. A delegate of the Respondent denied liability under s 14 of the Act on 8 February 2019.[6] This decision was affirmed by another delegate of the Respondent on 20 March 2019.[7] The Applicant lodged an application for a review of this decision by the Tribunal on 26 March 2019.[8][6] T21.[7] T27.[8] T1. A hearing in relation to the review was held by audio/visual link on 7 July 2020. The Applicant was self-represented. The Respondent was represented by Mr Ray Ternes of counsel. The hearing was conducted in the context of restrictions placed on the community in response to the COVID-19 pandemic. These restrictions necessitated that the hearing be conducted without the parties attending in person or that it be deferred until after the restrictions were lifted. The Applicant and the Respondent each consented to the hearing proceeding on the basis that it be conducted by audio/visual link. The hearing was originally scheduled for 11 and 12 June 2020. On 10 June 2020 the Tribunal convened a directions hearing by telephone to ascertain the parties’ readiness for the hearing. The Applicant indicated that he did not have access to a computer and would only have the use of his iPhone to access documents and participate in the hearing. The Tribunal determined that this level of access was inadequate and adjourned the proceedings until an in person hearing could be scheduled, but with the Applicant at liberty to apply for a relisting of the matter as a video hearing if he could obtain adequate computer facilities to enable him to properly participate in a hearing via an audio/visual link. The Applicant subsequently advised the Tribunal that he had obtained adequate computer facilities. Tribunal staff liaised with the Applicant to ensure that he was able to access the Tribunal’s Microsoft Teams system and, upon confirmation that he could do so, the Tribunal determined that the hearing could proceed by video link pursuant to s 33A of the Administrative Appeals Act 1975 (AAT Act), and the hearing was rescheduled for 7 July 2020.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons stated, the Tribunal is not satisfied that the tightness and pain experienced by the Applicant on and after 16 November 2018 was an injury within the meaning of the Act.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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