Mladenovic and Comcare - [2003] AATA 659

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 659
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2000/119

GENERAL ADMINISTRATIVE DIVISION ) No A2002/114

Re KSENIJA MLADENOVIC

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr G A Mowbray
Date14 July 2003
PlaceCanberra

Decision
The Tribunal affirms the reviewable decisions of 13 March 2000 (A2000/119) and 27 February 2002 (A2002/114).

..................[signed].............................
Member

CATCHWORDS
COMPENSATION – motor vehicle accident – accepted back condition – whether permanent impairment – claimed neck condition – whether suffered a neck injury
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24
Re Mladenovic and Comcare [2001] AATA 827
Comcare v Nichols [1999] FCA 209
REASONS FOR DECISION

14 July 2003 Mr G A Mowbray

1.       These applications are for review of two decisions by Comcare denying claims made by Ms Ksenija Mladenovic in relation to injuries caused by a motor vehicle accident on her way to work. The first application (A2000/119) relates to denial of a claim for permanent impairment where Comcare has accepted liability for the injuries claimed. The second application (A2002/114) concerns Comcare’s denial of liability for a different injury said to be caused by the same accident.
2.       This matter was heard by the Tribunal on 2 and 3 April 2002. Ms Mladenovic was represented by Mr Ben Salmon QC. Comcare was represented by Ms Lorraine Walker. There was insufficient time on the allotted dates for closing submissions. Comcare’s written submissions were received by the Tribunal on 24 April 2002, and Mrs Mladenovic’s written submissions were received on 9 May 2002.
Background
3.       Ms Mladenovic was born on 12 February 1965 in Yugoslavia. She completed a Bachelor of Agriculture there and came to Australia as a refugee in 1992. She began working at CSIRO in 1993 on a series of contracts. By 1997 she was working in the Division of Entomology as a technical assistant.
4.       On the morning of 7 January 1997 Ms Mladenovic had a single-vehicle accident on her way to work, losing control and colliding with a lamppost. On 16 January 1997 Ms Mladenovic completed a claim for rehabilitation and compensation for bruising to the right knee and right hand, low back strain and anxiety. Although the initial acceptance of this claim was not among the documents before the Tribunal, it appears that Comcare accepted the claim as “lower back strain, bruising right knee and right hand” on 31 January 1997.
5.       A claim for permanent injury was completed on 22 February 1999, with Ms Mladenovic contending that as a result of her accepted injuries she suffered a permanent low back injury and right leg pain. The claim was disallowed by Comcare on 14 May 1999. Following a request for reconsideration this determination was affirmed in a reviewable decision on 13 March 2000. An application for review of this decision was made to the Tribunal on 6 April 2000. This is the subject of matter A2000/119.
6.       A dispute arose between the parties as to whether the Tribunal could…

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 Mladenovic and Comcare

Details

AGLC: Mladenovic and Comcare [2003] AATA 659
Case: [2003] AATA 659
Decision Date: 14 July 2003

CaseChat Overview and Summary

The applicant, Mr Mladenovic, sought a review of decisions made by Comcare regarding his entitlement to compensation for a motor vehicle accident. Mr Mladenovic claimed that he suffered an accepted back condition and sought compensation for a neck injury that he argued was permanent and impairing. The dispute was heard by the Administrative Appeals Tribunal, which had to determine whether the accepted back condition was indeed permanent and impairing, and whether the claimed neck condition was a result of the accident. The legal issues before the Tribunal included the interpretation of the relevant sections of the Safety, Rehabilitation and Compensation Act 1988, specifically sections 4, 14, and 24, in the context of Mr Mladenovic's claims.

The Tribunal carefully considered the evidence and arguments presented by both parties. It reviewed the medical evidence concerning Mr Mladenovic's back condition and determined that it was accepted as being permanent and impairing. However, in relation to the neck condition, the Tribunal found that there was insufficient evidence to establish that the claimed neck injury was caused by the motor vehicle accident. The Tribunal relied on the authority of Comcare v Nichols, where similar issues were considered, and concluded that the evidence did not support a finding that the neck condition arose from the accident.

Based on its findings, the Tribunal affirmed the reviewable decisions of 13 March 2000 and 27 February 2002, which had denied compensation for the claimed neck condition. The Tribunal held that while Mr Mladenovic was entitled to compensation for the accepted back condition, there was no basis to extend compensation to the neck condition. The final orders of the Tribunal were to affirm the earlier decisions, maintaining the status quo regarding the compensation claims.

Orders

Orders of the court

The Tribunal affirms the reviewable decisions of 13 March 2000 (A2000/119) and 27 February 2002 (A2002/114).

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		) No A2002/114
Re		KSENIJA MLADENOVIC