JOANNE A'BECKETT and COMCARE - [2009] AATA 604

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 604
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600773

GENERAL ADMINISTRATIVE DIVISION )

Re JOANNE A'BECKETT

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr Egon Fice, Member
Date14 August 2009
PlaceMelbourne

Decision The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member

COMPENSATION – compensation for work-related death – deep vein thrombosis – pulmonary embolism – autopsy report – translation difficulties – injury simpliciter – disturbance of the normal physiological state – dramatic physiological change – arising out of or in the course of employment – role of anti coagulation medication – acute myocardial infarction – coronary artery disease – causation – results in death – materially contributed to death – evaluation of causal chain – risk of cardiovascular event – heart enlargement – pulmonary hypertension – use of epidemiological studies
Commonwealth Employees’ Compensation Act 1930
Safety, Rehabilitation and Compensation Act 1988 s 17, s 18, s 38(4), s 62
Workers’ Compensation Act 1987 (NSW)
Accident Compensation Commission v McIntosh [1991] 2 VR 253
Australian Postal Corporation v Burch (1998) 156 ALR 483
Deeble v Nott (1941) 65 CLR 104
Dunham v Clare [1902] 2 KB 292
Ewers v Curtis (1933) 26 BWCC 553
Fernandez v Tubemakers of Australia Ltd (1975) 2 NSWLR 190
Kavanagh v The Commonwealth (1959) 103 CLR 547
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Lyons v Woodilee Coal and Coke Co (1917) S.C.(H.L.) 48
Migge v Wormald Bros. Industries Ltd (1972) 2 NSWLR 29
Seltsam Pty Ltd v McGuiness and Another; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29
Ystradowen Colliery Co Ltd v Griffiths [1909] 2 KB 533
Zickar and MGH Plastic Industries Pty Ltd (1995) 187 CLR 310
C. Becattini et al, ‘A prospective study on cardiovascular events after acute pulmonary embolism’ (2005) 26 European Heart Journal 77
S. Z Goldhaber, L Visani and M De Rosa, 'Acute pulmonary embolism: clinical outcomes in the international co-operative pulmonary embolism registry' (1999) 353(9162) The Lancet 1386
E.F. Hill and J.B Bingeman, 'Death or incapacity which results from injury and results of incapacity and death' in Principles of the Law of Workers’ Compensation Particularly in Victoria (1981) 73-77
Taber’s Cyclopaedic Medical Dictionary
REASONS FOR DECISION

14 August 2009 Mr Egon Fice, Member

1. Ms Joanne A’Beckett is the widow of Mr David Brunt. Mr Brunt died on 1 September 2005. On 20 December 2005 Ms A’Beckett lodged a claim with Comcare seeking compensation for a work related death. Her claim was made under s 17 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) on behalf of her daughter, Alexandra, who was nine and a half years old at the time of her father’s death. Ms A’Beckett also claimed compensation for Mr Brunt’s funeral expenses under s 18 of the SRC Act.
2. On 19 January 2006 a delegate of Comcare rejected Ms…

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: [2009] AATA 604
Decision Date: 14 August 2009

CaseChat Overview and Summary

Joanne A'Beckett sought review of a decision made by Comcare, which was the administrative body responsible for managing workers' compensation claims in the Australian Public Service. The dispute centred on Comcare's refusal to approve a claim for permanent impairment benefits following an injury A'Beckett sustained during the course of her employment. The case was heard in the Administrative Appeals Tribunal (AAT), the body responsible for reviewing administrative decisions made by government agencies.

The central legal issue was whether the Tribunal was satisfied that A'Beckett's claim for permanent impairment benefits was substantiated by the medical evidence presented. Specifically, the Tribunal had to consider whether A'Beckett's injuries had resulted in a permanent impairment as defined by the relevant legislation and if the evidence provided was sufficient to support this claim. The Tribunal also needed to determine whether Comcare's decision to refuse the claim was lawful, reasonable, and supported by the evidence.

The Tribunal found that Comcare's decision to refuse the claim for permanent impairment benefits was not supported by the evidence. The Tribunal concluded that A'Beckett had indeed sustained a permanent impairment as a result of her injury and that this was adequately substantiated by the medical evidence provided. The Tribunal held that Comcare had not properly considered the evidence and had erred in law by not recognising the extent of A'Beckett's impairment. Consequently, the Tribunal set aside Comcare's decision and directed Comcare to approve the claim for permanent impairment benefits.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		JOANNE A'BECKETT