Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 942
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2003/159
GENERAL ADMINISTRATIVE DIVISION ) Re JUDITH RAE KELLY Applicant
And
COMCARE
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date27 September 2005
PlaceHobart
Decision The Tribunal affirms the decision under review.
..............................................
Deputy President
CATCHWORDS
Compensation – Commonwealth employee - whether onset of pain in 2003 caused by injuries suffered in fall at work in 1993 – whether “aggravation” – whether causal connection between fall at work and onset of pain – degeneration of spine – conflicting medical evidence – burden and standard of proof – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 – ss4(1), 60, 62, 64
Lees v Comcare (1999) 56 ALD 84
Tippett v Australian Postal Corporation (1997) 27 AAR 40
Bessey v Australian Postal Corporation (2003) AATA 127
Holbrook and Australian Post Corporation (1993) 5 ALN N446
Ladic and Capital Territory Health Commission (1982) 5 ALN N60
Briginshaw v Briginshaw (1938) 60 CLR 336
Kirby and Collector of Customs (1989) 20 ALD 369
Field v Australian Postal Corporation [2003] AATA 1036
Robertson v Comcare [2002] AATA 1259
Jones v Dunkel (1959) 101 CLR 298
REASONS FOR DECISION
27 September 2005 The Hon R J Groom (Deputy President) INTRODUCTION
1. This is a claim by the applicant, a Commonwealth employee, for compensation following an episode of “extreme pain” in the lower back suffered on 28 January 2003 and for a period after that date.
2. Over nine years earlier, on 19 April 1993, the applicant fell heavily on a polished floor during working hours and suffered “bruising to right wrist, shoulder, ankle, thigh and cervical spine”. She was off work for a period of some eight days and successfully claimed compensation for her injuries. The basis of the present claim by the applicant is that the injuries sustained in her fall in 1993 caused the onset of extreme pain in 2003.
3. In addition to the fall at work in 1993, the applicant suffered other compensable injuries during her employment in the Department of the Senate, including two claims for repetitive strain injuries (RSI) in 1994 and 1998.
4. Comcare ceased making compensation payments for the applicant’s various work related injuries in June 1997. On 16 February 2003 she lodged a fresh claim for rehabilitation and compensation stating that her injury was first noticed “on waking early morning” on 28 January 2003.
5. On 19 March 2003 Comcare considered the applicant’s claim and determined that she was not entitled to compensation. On 9 April 2003 the applicant sought a reconsideration of that determination. On 25 August 2003 a review officer affirmed the determination of 19 March 2003, but also decided to “… remit this matter to the claims manager for reconsideration under your previous claim for `bruising to right wrist, shoulder, ankle, thigh and cervical spine’”.
6. On 21 October 2003 the applicant applied to the Tribunal for…
Continue reading Kelly and Comcare
Sign in free to access the full text
- AGLC
- Kelly and Comcare [2005] AATA 942
- Case
- [2005] AATA 942
- Decision Date
CaseChat Overview and Summary
The Tribunal considered conflicting medical evidence on the issue of causation, including evidence from a number of medical experts. The Tribunal noted that the burden of proof was on the applicant to establish that the fall at work caused the onset of her pain in 2003. The Tribunal concluded that the applicant had not discharged this burden, and that the evidence did not establish a causal connection between the fall at work and the onset of the applicant’s pain in 2003. The Tribunal also considered the relevant statutory provisions and relevant case law, including Lees v Comcare, Tippett v Australian Postal Corporation, and Briginshaw v Briginshaw. The Tribunal found that the applicant’s evidence was not sufficient to establish the necessary causal connection on the balance of probabilities.
The Tribunal affirmed the decision under review, finding that the applicant had not established the necessary causal connection between the fall at work and the onset of her pain in 2003. The Tribunal found that the evidence did not support a finding that the fall at work caused the onset of the applicant’s pain in 2003, and that the applicant had not discharged the burden of proof on the balance of probabilities. The Tribunal also noted that the applicant had not provided sufficient evidence to establish the necessary causal connection on the balance of probabilities. The Tribunal affirmed the decision under review.
Orders
Orders of the court
The Tribunal affirms the decision under review.
Background
Background to the litigation
Full text does not contain this section.
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
Full text does not contain this section.