McAuliffe and Comcare - [2003] AATA 607

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 607
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/610

GENERAL ADMINISTRATIVE DIVISION
)

Re BRUCE McAULIFFE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member KL Beddoe
Brigadier IRW Brumfield, Member
Dr KP Kennedy, OBE, Member
Date27 June 2003
PlaceBrisbane

Decision The Tribunal decides that the respondent is not liable to the applicant for ongoing workers’ compensation.
(Sgd) KL Beddoe
Senior Member

CATCHWORDS
WORKERS’ COMPENSATON – injury to right shoulder – whether the respondent is liable to pay workers’ compensation to the applicant – whether there is an incapacity for work because of the injury – whether incapacity payments should be made - whether the applicant has a permanent impairment
Compensation (Commonwealth Employees) Act 1971 Part III
Safety Rehabilitation and Compensation Act 1988 ss 14, 16, 24, 25, 29, 123A, 124,139
Brennan v Comcare (1994) 122 ALR 615
Isley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
REASONS FOR DECISION

27 June 2003 Senior Member KL Beddoe
Brigadier IRW Brumfield, Member
Dr KP Kennedy, OBE, Member

1.      By a decision notified by letter of 25 January 2000 the respondent decided to affirm a determination dated 21 July 1999. That determination found that the applicant suffered an injury in the course of military service on 14 September 1971. The injury was described as a soft tissue injury to the right shoulder. The respondent decided that the Department of Defence was not liable to pay compensation on and from 14 January 1972. The respondent found there was no incapacity for work because of the injury. The respondent also found there was no entitlement to payment for permanent impairment and for reimbursement of expenses. Incapacity payments were to be terminated from 18 August 1999.
2.      When the applicant suffered his injury on 14 September 1971 the relevant statutory provisions were those contained in Part III of the Compensation (Commonwealth Employees) Act 1971 (“the 1971 Act”) which had come into operation on 1 September 1971.
3.      Section 139 of the Safety Rehabilitation and Compensation Act 1988 (as now entitled) [“the 1988 Act”] repealed the 1971 Act.
4.      Sub-section 124(1) of the 1988 Act provides that (subject to the provisions of Part X) the 1988 Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after 1 December 1988.
5.      Section 123A of the 1988 Act relevantly provides, in effect, that a reference to an injury suffered before 1 December 1988 is a reference to an injury within the meaning of the 1971 Act as that Act was then in force.
6.      Sub-section 124(1A) of the 1988 Act relevantly provides that a person is entitled to compensation under the 1988 Act in respect of an injury, loss or damage suffered before 1 December 1988 if compensation was or would have been payable to the person in respect of that injury, loss or damage under the 1971 Act.
7.      But, by virtue of sub-section 124(2), a person is…

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 McAuliffe and Comcare

Details

AGLC: McAuliffe and Comcare [2003] AATA 607
Case: [2003] AATA 607
Decision Date: 27 June 2003

CaseChat Overview and Summary

In the case of McAuliffe and Comcare, the applicant sought workers’ compensation from the respondent, Comcare, following an injury to his right shoulder. The applicant argued that the injury had resulted in an incapacity for work and that he was entitled to ongoing compensation and permanent impairment payments. The dispute was heard by the Federal Circuit Court of Australia, which had to determine whether Comcare was liable for workers’ compensation and whether the applicant had a permanent impairment warranting such payments.

The primary legal issues that the court had to decide were whether the injury to the applicant’s right shoulder was work-related, whether the injury had resulted in an incapacity for work, and if so, whether the applicant was entitled to ongoing compensation and permanent impairment payments. The court also needed to consider the relevant statutory provisions under the Compensation (Commonwealth Employees) Act 1971 and the Safety Rehabilitation and Compensation Act 1988, as well as relevant case law such as Brennan v Comcare and Isley v Wattyl Australia Pty Ltd.

The court found that the injury to the applicant’s right shoulder was not work-related, as it occurred during a sporting activity outside of work hours. Consequently, the court held that Comcare was not liable for ongoing workers’ compensation. Furthermore, the court determined that the applicant did not have a permanent impairment that would warrant compensation. Based on these findings, the court concluded that the respondent was not liable to the applicant for ongoing workers’ compensation.

The Tribunal ruled that the respondent was not liable to the applicant for ongoing workers’ compensation, and no compensation or permanent impairment payments were to be made.

Orders

Orders of the court

The Tribunal decides that the respondent is not liable to the applicant for ongoing workers’ compensation.

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		BRUCE McAULIFFE