MAURICE HILLIER and COMCARE

[2009] AATA 188

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2009] AATA 188

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4002

GENERAL ADMINISTRATIVE DIVISION		)
Re		MAURICE HILLIER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member Robin Hunt and Dr M Thorpe, Member

Date20 March 2009

PlaceSydney

Decision The decision under review is set aside and in substitution we decide that Comcare is liable to pay the applicant compensation pursuant to sections 14, 16, 19 and 124 of the Act. Further, Comcare is liable to pay the applicant’s costs in accordance with section 67 of the Act.

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

Ms R Hunt
   Senior Member

CATCHWORDS:

COMPENSATION – continuing liability for injury previously accepted – cessation of payment – onus on respondent - on balance applicant did not cease to suffer effects of accepted injury – decision set aside.

RELEVANT ACT/S:

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14 16, 19, 124, 132

Compensation (Commonwealth Government Employees) Act 1971

Administrative Appeals Tribunal Act 1975 (Cth) s 43

CITATIONS:

The Commonwealth v Muratore (1978)141 CLR 296
Comcare v Nichols [1999] FCA 209
Re Hocking and Australian Postal Corporation [2002] AATA 963
Watts v Rake (1960) 108 CLR 158
Purkess v Crittenden (1965) 114 CLR 164

Comcare v Sahu-Khan [2007] FCA 15

REASONS FOR DECISION

20 March 2009 Senior Member Robin Hunt and Dr M Thorpe, Member

Introduction

1. Mr Hillier sustained a back injury on 15 May 1979 for which he received compensation from Comcare and its predecessor, the Commissioner for Employees Compensation, for a continuous period, until 7 February 2007. On that date, Comcare determined it was not presently liable to pay compensation for medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) and it “was not presently liable to pay compensation [to Mr Hillier] for incapacity benefits under section 132(4) of the Act”. Section 132 of the Act deals with payments made to former employees under the age of 65 who are not in receipt of superannuation benefits and are unable to engage in any work.

2.        Comcare's determination of 31 January 2007 and reconsideration decision of 28 May 2007 described the injury for the claim as “lower lumbar facet joint strain”.  The reviewable decision made on 28 May 2007 to cease to accept liability for "lower lumbar facet strain" was based on a report from Dr Frank Machart, dated 27 September 2006.  Dr Machart reported that the applicant's condition was a pre-existing constitutional osteoarthritis undergoing natural progression of increase in severity and compounded by obesity.  In Dr Machart’s opinion, the injury sustained in 1979 was not a contributing factor to his current condition.

3.        Mr Hillier had been in receipt of compensation payments for 28 years for the back injury sustained in 1979 with the obvious inference that the payments were because of the injury sustained 15 May 1979.  To accord with Dr Machart's opinion requires the shifting of presumptions of fact on which liability has been accepted for 28 years.…