McAway and Comcare Australia - [2003] AATA 988

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 988
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1143
GENERAL ADMINISTRATIVE DIVISION

Re: IAN McAWAY
Applicant

And: COMCARE AUSTRALIA
Respondent

DECISION
Tribunal:       Miss E.A. Shanahan, Member
Date:             30 September 2003
Place:            Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes its decision that the applicant’s bronchiectasis was aggravated and possibly accelerated by the delay in diagnosis by the respondent (s6A(2b) of the Safety, Rehabilitation and Compensation Act1988).
The applicant is entitled to compensation for loss of his sea-going allowance and the cost of continuing medical treatment. The matter is remitted to the respondent for estimation of the amount of compensation attracted.

. . . . ……………. .. .
Member

Military Compensation and Rehabilitation Service - pre-existing but undiagnosed condition - aggravation and/or acceleration - as an unintended consequence of that treatment the person suffered or suffers an injury - delay in diagnosis - loss of sea going allowance - chemical exposure.
Safety, Rehabilitation and Compensation Act 1988 (SRCA) s4(1), s6A(2b), 14, 16, 19
Johnston v The Commonwealth (1982) 150 CLR 331
Elliot and Comcare (2001) AATA 305 (12 April 2001)
W. Raymond, Parkes Occupational Lung Disorders, 2^nd edition Butterworths, 1982
REASONS FOR DECISION
30 September 2003  Miss E.A. Shanahan, Member
1.      This is an application for review of the decision of a delegate of the respondent dated 12 October 2000, as affirmed on 4 July 2001, denying liability to pay compensation for the applicant’s bronchiectasis. The decision was based on medical evidence at the time that the applicant’s military employment was probably not the principle cause of his condition of bronchiectasis.
2.      The applicant was represented by Mr Carey of Counsel instructed by Ms K. Young of Ryan Carlisle Thomas and the respondent by Mr Clarke of Counsel instructed by Ms E. Reed of the Australian Government Solicitor. The Tribunal had before it the s37A of the Commonwealth Administrative Appeals Tribunal Act 1975 documents (T-documents). The applicant tendered the report of Dr J. Burdon dated 24 April 2002 (Exhibit A1); the report of Professor Michael Pain dated 24 April 2002 (Exhibit A2) and the applicant’s statement of 5 July 2002 (Exhibit A3). The respondent tendered the applicant’s service medical record Volume 2 (Exhibit R1); the report of Dr Stephenson dated 27 June 2002 (Exhibit R2); a second report by Dr Stephenson dated 28 May 2003 (Exhibit R3); a report of Susan King dated 20 May 2003 (Exhibit R4) and the report of Dr Stephenson of 6 June 2003 (Exhibit R5).
3.      The applicant and Professor Pain attended the Hearing and gave evidence. Dr P. Stephenson’s evidence was given by video conferencing.
Background to the Application
4.      The applicant joined the Navy in July of 1993 and was employed as a Marine Technician-Mechanical. He held the rank of Leading Seaman and now Petty Officer. While on sea duty the applicant completed three four-hour watches per day in the engine room, monitoring equipment and repairing any faults.
5.      While…

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 McAway and Comcare Australia

Details

AGLC: McAway and Comcare Australia [2003] AATA 988
Case: [2003] AATA 988
Decision Date: 30 September 2003

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a decision by Comcare Australia to deny compensation to Ian McAway for his bronchiectasis, which was diagnosed in 1999 after he was removed from sea-going duties in the Navy due to his condition. McAway claimed that his condition was aggravated or accelerated by his exposure to engine room fumes and chemicals during his naval service, and that a delay in diagnosis resulted in the loss of his sea-going allowance. The Tribunal had to decide whether the applicant's bronchiectasis was caused or aggravated by his military employment and if the delay in diagnosis led to an aggravation of his condition, thus entitling him to compensation.

The Tribunal found that McAway's bronchiectasis was likely present before his enlistment in the Navy, originating from a childhood lung infection. Although the condition was mild and intermittently symptomatic, the delay in diagnosis until 1999, following an acute infective episode, led to his recategorization and subsequent removal from sea-going duties. The Tribunal accepted that the condition could have been diagnosed earlier if appropriate investigations had been performed. Consequently, the Tribunal determined that the delay in diagnosis aggravated McAway's condition, leading to the loss of his sea-going allowance. It concluded that McAway was entitled to compensation for this loss and directed that the matter be remitted to Comcare Australia to determine the amount of compensation payable, along with ordering Comcare to pay McAway's legal costs.

Orders