Khnaizer and Comcare - [2005] AATA 186

Administrative

Appeals

Tribunal

WRITTEN REASONS FOR ORAL DECISION [2005] AATA 186
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/27

GENERAL ADMINISTRATIVE DIVISION
) No N2004/81

Re MICHELLE KHNAIZER

Applicant

And

COMCARE

Respondent

Tribunal Mrs Josephine Kelly,
Senior Member
Date3 February 2005
PlaceSydney

Decision
1. In proceedings N2004/27, the reviewable decision dated 2 December 2003 is varied as follows:
As at 25 September 2002 and to the present date, Comcare has no present liability to pay compensation to Ms Khnaizer pursuant to ss 16, 19, 20, 21, 21A and 22 of the Safety, Rehabilitation and Compensation Act 1988.
2. In proceedings N2004/81, the reviewable decision dated 12 August 2003 is affirmed.
3. There is no order as to costs.

[sgd] Mrs Josephine Kelly, Senior Member

CATCHWORDS
WORKER’S COMPENSATION – claim for compensation and permanent impairment – injury to knee, neck and lumber sprain - accident while driving to work – lack of ongoing medical attention – inconsistent complaints since day of the injury –– applicant not entitled to compensation – no permanent impairment – decision varied.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19, 20, 21, 21A, 22, 24 and 27..
CASELAW
Australian Postal Corporation v Oudyn [2003] FCA 318
Rosillo v Telstra Corporation Limited [2003] FCA 1628
Liu v Comcare [2004] AATA 617

REASONS FOR DECISION

3 February 2005   Senior Member Josephine Kelly

BACKGROUND
1.      On 4 July 2000, Ms Michelle Khnaizer, the Applicant in these proceedings, was driving to Lidcombe station to catch her train to work at Australian Hearing in Parramatta. She failed to give way at a give way sign and collided with a turning truck. She was taken to Auburn Hospital where she was found to have suffered no major injuries but had a laceration and bruising to the right knee. An x-ray taken of the right knee at the time shows no joint effluxion, fracture or joint dislocation sub-luxation. She was certified unfit for work until 11 July 2000. She was then off work for some months and gradually returned to full duties over a period of nine months.
2.      On 5 January 2001 Comcare accepted liability pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, ("the Act"), in respect of the claim for a bruise to the right knee, neck sprain and lumbar sprain. Ms Khnaizer was paid incapacity benefits up to and including 22 December 2000 and reasonable medical expenses up to and including at least 15 October 2001. Comcare determined on 25 September 2002 that on and from close of business Wednesday, 25 September 2002, Comcare is no longer liable to pay compensation for your claim under any provision of the Act.
3.      On 3 April 2003, Comcare refused Ms Khnaizer's claim for permanent impairment under section 24 and 27 of the Act in respect of her neck, back and right lower limb. That decision was affirmed in the reviewable decision made on 12 August 2003. This is the subject of proceeding N2004/81 before the…

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 Khnaizer and Comcare

Details

AGLC: Khnaizer and Comcare [2005] AATA 186
Case: [2005] AATA 186
Decision Date: 3 February 2005

CaseChat Overview and Summary

The parties in this case were Khnaizer, the applicant, and Comcare, the respondent. The applicant brought a claim for compensation and permanent impairment following an injury to his knee, neck, and lumbar area. The injuries occurred in an accident while the applicant was driving to work. Comcare initially accepted liability for the applicant’s injuries, however, later disputed entitlement to compensation. The Federal Circuit and Family Court of Australia was tasked with resolving this dispute.

The primary legal issue was whether the applicant was entitled to compensation for his injuries and whether he suffered any permanent impairment. The court also had to consider the consistency of the applicant’s complaints and his ongoing medical treatment. The court had to determine if the injuries sustained by the applicant were directly related to his employment, and if there was sufficient evidence to support his claims.

The court found that the applicant’s claims for compensation and permanent impairment were not substantiated. The court was unpersuaded by the applicant’s inconsistent complaints and lack of ongoing medical attention. The court concluded that the applicant’s injuries were not work-related and did not result in any permanent impairment. The court varied the primary decision, finding that the applicant was not entitled to compensation or a permanent impairment award. The court’s decision was based on the lack of credible evidence to support the applicant’s claims.

This case highlights the importance of consistent complaints and ongoing medical treatment in establishing a valid claim for worker’s compensation. The court’s decision serves as a reminder that claims must be substantiated with credible evidence to be successful.

Orders