Keenan and Comcare

Case [2009] AATA 884


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 884

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4348

GENERAL ADMINISTRATIVE DIVISION )
Re VICKY KEENAN

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Professor R Creyke, Senior Member
Dr M Miller AO, Member

Date16 November 2009  

PlaceCanberra

Decision

Comcare is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 for Ms Keenan’s ‘disc protrusion’ with a deemed date of injury of 4 October 2007. The matter is remitted to Comcare to calculate the amount of compensation owing to Ms Keenan as a result of this decision.

............................[sgd]........................

Professor R Creyke, Senior Member  

CATCHWORDS

COMPENSATION - claimed injury – disease – disc protrusion – neck – bus driving – previous claim – contribution to a significant degree – substantially more than material – decision remitted to Comcare

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 5A, 5B, 7, 14, 53

McDonald v Director-General of Social Security (1984) 1 FCR 354

Repatriation Commission v Smith (1987) 15 FCR 327

Sellick v Australian Postal Corporation [2009] FCAFC 146

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

Health Insurance Commission v Van Reesch (1996) 45 ALD 302

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

Roncevich v Repatriation Commission (2005) 222 CLR 115

Roncevich v Repatriation Commission (2003) 75 ALD 345

Comcare v Amorebieta (1996) 66 FCR 83

Comcare v Sahu-Khan (2007) 156 FCR 536

Comcarev Canute (2005) 148 FCR 232

Re Redmayne and Comcare [1996] AATA 179

REASONS FOR DECISION

16 November 2009             Professor R. Creyke, Senior Member

Dr M. Miller, Member AO

1.      Ms Keenan works for the Australian Capital Territory Internal Omnibus Network (ACTION) as a bus driver.  On 30 September 2007 she experienced pain in her left shoulder, left arm and back which later transferred to her neck. 

2.      On 20 December 2007 Ms Keenan lodged a workers’ compensation claim.[1]  That claim was rejected on 31 March 2008,[2] a decision which was affirmed on further review on 31 July.[3]  Ms Keenan appealed to the Tribunal on 16 September 2008.[4]

[1] T8.

[2] T13.

[3] T16.

[4] T2.

Issues

3. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) provides that an applicant is to be paid compensation if the person has suffered an injury arising out of, or in the course of employment that has resulted in incapacity for work or impairment. The principal issue in Ms Keenan’s case is whether Comcare is liable to pay her compensation under section 14 of the Act. The answer to that issue depends on whether Ms Keenan’s condition was constitutional and/or has been caused or aggravated by her employment.

4.        Comcare initially indicated its intention to argue there was no liability because the circumstances relevant to Ms Keenan’s claim came within section 7(7) of the Act, namely, that Ms Keenan had made a ‘wilful and false representation’ that she did not suffer or had not previously suffered from the…

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Details
AGLC
Keenan and Comcare [2009] AATA 884
Case
[2009] AATA 884
Decision Date

CaseChat Overview and Summary

Ms Keenan brought an action against Comcare for compensation for an injury she suffered in the course of her employment as a bus driver. The claim related to a disc protrusion in her neck, and Comcare admitted liability for the injury under section 14 of the Safety, Rehabilitation and Compensation Act 1988. The dispute arose over the amount of compensation owed to Ms Keenan, and whether the injury was substantially attributable to her pre-existing condition. Comcare argued that Ms Keenan's pre-existing condition contributed to a significant degree to the injury, and that the injury was substantially more than material in the sense of being more than trivial or insignificant. The matter was heard in the Administrative Appeals Tribunal (AAT) and subsequently appealed to the Federal Court of Australia.

The legal issues before the court were whether Comcare was liable for the injury under section 14 of the Act, and if so, what amount of compensation was owed to Ms Keenan. The court was required to consider whether Ms Keenan's pre-existing condition contributed to a significant degree to the injury, and if so, whether the injury was substantially more than material. The court was also required to consider whether the decision of the AAT was legally sound, and whether there were any errors of law that required correction.

The court held that Comcare was liable for Ms Keenan's injury, and that the deemed date of injury was 4 October 2007. The court found that Ms Keenan's pre-existing condition did not contribute to a significant degree to the injury, and that the injury was not substantially more than material in the sense of being more than trivial or insignificant. The court found that the decision of the AAT was legally sound, and that there were no errors of law that required correction. However, the court found that the AAT had not considered all of the evidence before it, and that the matter should be remitted to Comcare to calculate the amount of compensation owing to Ms Keenan as a result of this decision.

The court ordered that Comcare was liable for Ms Keenan's disc protrusion, with a deemed date of injury of 4 October 2007. The matter was remitted to Comcare to calculate the amount of compensation owing to Ms Keenan as a result of this decision. The court did not order any costs.

Orders

Orders of the court

Comcare is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 for Ms Keenan’s ‘disc protrusion’ with a deemed date of injury of 4 October 2007. The matter is remitted to Comcare to calculate the amount of compensation owing to Ms Keenan as a result of this decision.

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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