Kelly and Comcare - [2005] AATA 942

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
Roe v Comcare [2003] AATA 126
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…

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.

Continue reading Kelly and Comcare

Details

AGLC: Kelly and Comcare [2005] AATA 942
Case: [2005] AATA 942
Decision Date: 27 September 2005

CaseChat Overview and Summary

The applicant, Kelly, sought compensation from Comcare, the Commonwealth employee’s compensation provider, claiming that pain she experienced in 2003 was caused by injuries sustained in a fall at work in 1993. The dispute was heard by the Administrative Appeals Tribunal, and the decision was subsequently affirmed. The primary issue before the Tribunal was whether the onset of the applicant’s pain in 2003 was caused by injuries suffered in the fall at work in 1993, or whether the pain was an aggravation of a pre-existing condition. A secondary issue was whether there was a causal connection between the fall at work and the onset of the applicant’s pain, particularly in light of the degeneration of her spine.

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

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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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GENERAL ADMINISTRATIVE DIVISION		)
Re		JUDITH RAE KELLY

27 September 2005	The Hon R J Groom (Deputy President)
INTRODUCTION