Moore and Comcare - [2007] AATA 2111

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2111
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2005/189, 2007/3214

GENERAL ADMINISTRATIVE DIVISION )

Re CARMEN MOORE

Applicant

And

COMCARE

Respondent

DECISION
TribunalJ.W. Constance, Senior Member
Dr P. Wilkins MBE, Member

Date20 December 2007
PlaceCanberra

Decision
2007/3214

1.     In the matter of 2007/3214 the reviewable decision of Comcare made 12 June 2007 is varied to read as follows:

Under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), liability for the right shoulder strain suffered by Mrs Moore arising from her employment by the Australian National University is accepted. As at the date of this decision this injury has not resolved, and up to, and at the date of, the decision Mrs Moore has continued to suffer the effects of the injury.

A 2005/189

2.     In the matter of A 2005/189 the reviewable decision of Comcare made 16 May 2005 is set aside.

3.     In substitution therefore it is decided that Mrs Moore is entitled to be compensated pursuant to sections 24 and 27 of the Act in respect of the injury being cervico-thoracic musculo-ligamentous strain.

2007/3214, A 2005/189

4.     The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Mrs Moore.

..................................................
J.W. Constance. Senior Member
DRAFT DECISION  [3.28 pm]
ADMINISTRATIVE APPEALS TRIBUNAL
By MR J. CONSTANCE, Senior Member
and DR P. WILKINS, Member
Matter Nos A2005/189 and A2007/3214
CARMEN MOORE and COMCARE
CANBERRA, 20 DECEMBER 2007
MR CONSTANCE:   Please be seated. This is a matter of Moore and Comcare for decision. I can indicate that as well as the formal decision document, we will obtain a copy of the transcript and provide a copy to each party, so you don’t have to make too detailed notes. I can also indicate that because of the amount of evidence in this matter, it’s going to take some considerable time to deliver the decision. If anyone needs to leave at any stage, please feel free to do so, and no offence will be taken, I can assure you. Pardon me. In this matter, Mrs Moore seeks reviews of two decisions made by Comcare. In matter A2005/189, the reviewable decision by Comcare was made on 16 May 2005, disallowing compensation for permanent impairment in respect of an injury to the neck and shoulder.
It is claimed that this injury occurred in 1995 and was caused by her employment as a printer’s assistant at the Australian National University. In matter 2007/3214, the reviewable decision by Comcare was made on 12 June 2007, accepting liability for a right shoulder strain sustained in June – on 16 June 1995, but also determining that this injury had resolved by the end of 1996. In August 1995, Mrs Moore had submitted a claim in respect of a right-shoulder cervico pulled muscle. Comcare accepted liability for an injury, which it described as…

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 Moore and Comcare

Details

AGLC: Moore and Comcare [2007] AATA 2111
Case: [2007] AATA 2111
Decision Date: 20 December 2007

CaseChat Overview and Summary

Moore and Comcare is a case involving Mrs Moore, a former employee of the Australian National University, and Comcare, the government agency responsible for workers' compensation claims. Mrs Moore sought compensation for a right shoulder strain she sustained during her employment. The dispute was reviewed by the court, which had to determine the liability of Comcare and the extent of compensation owed to Mrs Moore. The legal issues included whether Comcare was liable for the injury, the nature of the injury, and the appropriate compensation under the Safety, Rehabilitation and Compensation Act 1988. The court found that Comcare was liable for Mrs Moore's right shoulder strain, which had not resolved by the date of the decision. It also determined that the original decision regarding the injury did not accurately reflect the nature of the injury, which was actually a cervico-thoracic musculo-ligamentous strain. As a result, the court set aside the previous decision and ruled that Mrs Moore was entitled to compensation for the correct injury. The court ordered that Comcare should compensate Mrs Moore for the cervico-thoracic musculo-ligamentous strain and that costs of the proceedings would be paid by Comcare unless Mrs Moore applied for costs within 14 days.

Orders

Orders of the court

2007/3214

1. In the matter of 2007/3214 the reviewable decision of Comcare made 12 June 2007 is varied to read as follows:

Under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), liability for the right shoulder strain suffered by Mrs Moore arising from her employment by the Australian National University is accepted. As at the date of this decision this injury has not resolved, and up to, and at the date of, the decision Mrs Moore has continued to suffer the effects of the injury.

A 2005/189

2. In the matter of A 2005/189 the reviewable decision of Comcare made 16 May 2005 is set aside.

3. In substitution therefore it is decided that Mrs Moore is entitled to be compensated pursuant to sections 24 and 27 of the Act in respect of the injury being cervico-thoracic musculo-ligamentous strain.

2007/3214, A 2005/189

4. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Mrs Moore.

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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