Mladenovic and Comcare - [2001] AATA 827

DECISION AND REASONS FOR DECISION [2001] AATA 827

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/119

GENERAL ADMINISTRATIVE DIVISION       )
           Re      KSENIJA MLADENOVIC
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date25 September 2001
PlaceCanberra

Decision The Tribunal has no jurisdiction to take into account the applicant's neck condition in its review of the respondent's decision to deny liability for compensation for permanent impairment.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)
CATCHWORDS
PRACTICE & PROCEDURE - jurisdiction – permanent impairment - whether injury not claimed for on compensation claim form can be considered by the Tribunal.
Safety Rehabilitation and Compensation Act 1988 ss. 14, 24, 27
Denison-Smith and Comcare [2000] AATA 553
Lees v Comcare (1999) 56 ALD 84
Telstra Corporation Limited v Barrow (1994) 35 ALD 461

REASONS FOR DECISION

25 September 2001 Senior Member J.A. Kiosoglous MBE

The matter was brought before the Tribunal at the request of the respondent's solicitors for the Tribunal to determine whether or not there exists a jurisdictional problem and if so, that the Tribunal give consideration to this prior to the hearing of the substantive matters. The issue in question at this time is whether the claim to be considered at the substantive hearing relates to an injury to the neck that the applicant alleges is a result of the injury for which liability has been accepted in relation to the claim.
The applicant's solicitors indicated that they would be claiming compensation for permanent impairment in respect of the neck injury. It was for this reason that the respondent's solicitors sought to clarify whether the Tribunal considers that there is a problem in relation to jurisdiction for that condition.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T321), together with two exhibits lodged by the respondent (Exhibits R1-R2). The applicant was represented by Mr G. Lunney and the respondent was represented by Ms J. Richards.
history of the application
The applicant, Mrs Ksenija Mladenovic, lodged a claim for compensation (T3) dated 16 January 1997 in relation to "bruising right knee and right hand, low back strain and anxiety" (T3/5) following a motor vehicle accident on 7 January 1997.
The respondent accepted liability for lower back strain and bruising right knee and right hand on 31 January 1997 pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) with effect from 7 January 1997, being the date of injury.
The applicant lodged a compensation claim for permanent injury on 22 February 1999 (T212/302). At Part B of the said compensation claim form, in response to the question: 'What permanent injury/impairment(s) of the body do you suffer from as a result of your condition?" the applicant wrote: "Low back injury and right leg pain" (T212/302).
On 22 February 1999, the applicant also completed a non-economic loss questionnaire, where she wrote "lower back strain, bruising right knee and right hand please, refer to Dr Champion report from 1/7/98" (T211/298).

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 [2001] AATA 827
Case: [2001] AATA 827
Decision Date: 25 September 2001

CaseChat Overview and Summary

The case of Mladenovic and Comcare was heard in the Administrative Appeals Tribunal of Australia. The applicant, Mladenovic, was a former employee of the Commonwealth, and the respondent, Comcare, is the Commonwealth's workers' compensation insurer. The dispute centred around the Tribunal's jurisdiction to consider an injury that was not claimed for on the compensation claim form. The Tribunal had to decide whether it could consider a claim for permanent impairment that was not listed on the initial compensation claim form.

The legal issues before the Tribunal were whether the Tribunal had jurisdiction to consider an injury that was not claimed for on the compensation claim form and whether the Tribunal could exercise its discretion under section 14 of the Safety Rehabilitation and Compensation Act 1988 to consider the injury. The Tribunal had to consider the relevant legislative provisions and previous case law to determine its jurisdiction.

In reaching its decision, the Tribunal considered the relevant legislative provisions, including sections 14, 24, and 27 of the Safety Rehabilitation and Compensation Act 1988. The Tribunal also considered relevant case law, including Denison-Smith and Comcare and Lees v Comcare. The Tribunal held that it did not have jurisdiction to consider the injury that was not claimed for on the compensation claim form. The Tribunal found that the provisions of the Act and the relevant case law did not confer on it the jurisdiction to consider injuries not claimed for on the compensation claim form. The Tribunal also found that it did not have the discretion to consider the injury under section 14 of the Act.

The Tribunal dismissed the applicant's claim for permanent impairment for the injury that was not claimed for on the compensation claim form. The Tribunal held that it did not have jurisdiction to consider the injury and that the claim was therefore invalid. The Tribunal's decision was based on a strict interpretation of the relevant legislative provisions and case law, and it did not consider the merits of the applicant's claim for permanent impairment.

Orders