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
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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