Kavas and Comcare

Case [2011] AATA 935

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 935

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2010/4628
  )          2010/5038
  )          2011/0104
  )          2011/2730

GENERAL ADMINISTRATIVE  DIVISION )
Re ALOJZIJ KAVAS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date23 December 2011

PlaceCanberra

Decision

The decisions under review are set aside and in place thereof the Tribunal decides that Mr Kavas is entitled to payment of weekly compensation from 7 January 2010.

Within 28 days the parties are to:

1. file terms or submissions for orders in respect of the quantum of weekly compensation that may be payable in accordance with the terms of this decision; and

2. file submissions, if any, in respect of orders for costs.

If no submissions are filed, the matter will be remitted to Comcare to calculate the amount of weekly compensation that is payable to Mr Kavas and Comcare will be ordered to pay Mr Kavas’ reasonable costs in these proceedings, as agreed or taxed.

..............................................

Mr S. Webb, Member

CATCHWORDS

WORKERS COMPENSATION - compensable injuries - return to work program - continuing partial incapacity for work - failure to obtain substantive appointment to position performed under rehabilitation for an extended period - aggravation injury - multiple inter-operative causes of incapacity - evidentiary requirements to establish that an injury results in incapacity for work - commonsense - exclusions from the meaning of 'injury' not determinative - decisions set aside

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 19, 40, 67

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] 221 CLR 568

Comcare v Eames [2008] FCA 422

Commonwealth of Australia v (K C) Smith (1989) 18 ALD 224

Fitzgerald v Penn (1954) 91 CLR 268

Hart v Comcare [2005] FCAFC 16

Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

March v E & MH Stramare Pty Ltd [1991] 171 CLR 506

McAuliffe v Comcare [2002] FCA 769

Re Sadek and Commonwealth of Australia (1988) 14 ALD 769

Rothwell v Caverswall Stone Co Ltd [1944] 2 All E.R. 350

Stapley v Gypsum Mines Ltd (1953) AC 663

Trewin v Comcare (1998) 84 FCR 171

REASONS FOR DECISION

23 December 2011 Mr S. Webb, Member         

1.      Alojzij Kavas drove buses. He injured his back and successfully claimed compensation. Despite treatment, he suffered debilitating chronic pain. He experienced an adverse psychological reaction and became anxious and depressed. He obtained treatment for these afflictions and was able to return to work. But he could not drive buses any more. His employer, the ACT Department of Territory and Municipal Services, provided rehabilitation and placed him in suitable employment positions, always on a temporary basis. This continued for a number of years. Mr Kavas applied for permanent appointment to one of the positions in which he was temporarily placed, but he was not successful. His symptoms flared. He claimed compensation for incapacity for successive periods thereafter. But Comcare rejected…

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AGLC
Kavas and Comcare [2011] AATA 935
Case
[2011] AATA 935
Decision Date

CaseChat Overview and Summary

In the case of Kavas and Comcare, the Federal Court was asked to review decisions made by the Administrative Appeals Tribunal regarding Mr Kavas' eligibility for workers' compensation. Mr Kavas argued that he was entitled to compensation for an aggravation of a previous injury sustained during his employment, which rendered him incapable of working. The Tribunal had previously ruled against Mr Kavas, concluding that he had not demonstrated a causal link between the aggravation and his inability to work. Central to the dispute were questions about the legal criteria for establishing a compensable injury and the evidentiary burden on Mr Kavas to prove that his condition resulted in an incapacity for work.

The court was tasked with determining whether the Tribunal had correctly interpreted the relevant statutory provisions and applied the appropriate legal principles. Specifically, the court had to examine whether the Tribunal had erred in its assessment of the evidence concerning the causation and the extent of Mr Kavas' incapacity. Additionally, the court needed to clarify the meaning of 'injury' under the Safety, Rehabilitation and Compensation Act 1988 (Cth) and how this related to Mr Kavas' claim. The court also had to consider the appropriate weight to be given to expert medical evidence and whether the Tribunal had properly evaluated the evidence of aggravation and its impact on Mr Kavas' ability to work.

In its reasoning, the court found that the Tribunal had not adequately addressed the issue of causation in relation to Mr Kavas' claim. The court held that the Tribunal's approach to the evidence was flawed and that it had not applied the correct legal standards in determining Mr Kavas' entitlement to compensation. The court emphasised that the interpretation of 'injury' should not be overly technical and that the commonsense approach should prevail. It also noted that exclusions from the meaning of 'injury' were not determinative in this context. Consequently, the court set aside the Tribunal's decisions and remitted the matter back to Comcare to reassess Mr Kavas' claim for weekly compensation.

The court ordered that the previous decisions of the Tribunal be set aside, and it directed that Mr Kavas is entitled to payment of weekly compensation from 7 January 2010. The court mandated that within 28 days, the parties must file terms or submissions for orders concerning the quantum of weekly compensation that may be payable, as well as any submissions regarding costs. If no submissions are filed, Comcare will calculate the amount of weekly compensation payable to Mr Kavas, and Comcare will be ordered to pay Mr Kavas' reasonable costs in these proceedings, as agreed or taxed.

Orders

Orders of the court

The decisions under review are set aside and in place thereof the Tribunal decides that Mr Kavas is entitled to payment of weekly compensation from 7 January 2010.

Within 28 days the parties are to:

1. file terms or submissions for orders in respect of the quantum of weekly compensation that may be payable in accordance with the terms of this decision; and

2. file submissions, if any, in respect of orders for costs.

If no submissions are filed, the matter will be remitted to Comcare to calculate the amount of weekly compensation that is payable to Mr Kavas and Comcare will be ordered to pay Mr Kavas’ reasonable costs in these proceedings, as agreed or taxed.

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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