Moore and Comcare - [2003] AATA 1005

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 1005
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/520

GENERAL ADMINISTRATIVE DIVISION
)

Re DANIEL PAUL MOORE

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr O Rinaudo, Member
Date7 October 2003
PlaceBrisbane

Decision The Tribunal affirms the decision under review.
...................(Sgd)......................
O Rinaudo
Member

CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – capacity to work – whether applicant is able to work – nature of work which applicant is able to perform – “suitable employment” – assessment of rate of possible earnings from suitable employment
Safety, Rehabilitation and Compensation Act 1988 s 14
Pulitiano v Telstra (1998) 50 ALD 1015
Comcare v Line [2002] FCA 553
Comcare v Line [2002] FCFCA 321
Re Apostolidis and Comcare (AAT No 10431, 27 September 1995)
REASONS FOR DECISION

7 October 2003 Mr O Rinaudo, Member

Reviewable Decision
1. Mr Daniel Paul Moore makes application to review the decision of the Department that his entitlement to receive incapacity payments for his accepted back condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) ceased on and from 3 July 2000. This decision was affirmed by the Reconsideration Delegate on 10 May 2001.
2.       At the hearing the applicant, Mr Moore, gave evidence. In addition to Mr Moore’s evidence, evidence was also taken from Mr Trevor Little; Dr Bruce Low, Orthopaedic Surgeon; Dr Richard Gibberd, Orthopaedic Surgeon; Miss Kathryn Purse, Occupational Therapist; Ms Hemmett, Rehabilitation Consultant and Dr John Cameron, Neurologist.
3.       In addition to the oral evidence the following documents were tendered into evidence and marked as exhibits.
§Exhibit 1           “T” Documents
§Exhibit 2           Statement of Daniel Paul Moore dated 12 January 2002
§Exhibit 3           Statement of Daniel Paul Moore dated 27 February 2002
§Exhibit 4           Statement of Daniel Paul Moore dated 21 October 2002
§Exhibit 5           Report of Dr Bruce Low dated 24 April 2001
§Exhibit 6           Report of Dr Bruce Low dated 22 June 2001
§Exhibit 7           Report of Kathryn Purse dated 13 August 2001
§Exhibit 8           Report of Dr John Cameron dated 20 December 2001
§Exhibit 9           Statement of Trevor Little undated
§Exhibit 10       Rehabilitation Plan from CRS Australia
§Exhibit 11       Letter from Australian Army, dated 12 March 1998, regarding discharge
§Exhibit 12       Confidential Report from Department of Defence dated 24 June 1996
§Exhibit 13       Confidential Report from Department of Defence dated 15 May 1998
§Exhibit 14       Position Profile – Department of Veterans’ Affairs

History and Background
4. The applicant enlisted in the Australian Regular Army on 26 April 1990 serving in the Infantry. Upon discharge on 28 June 1998 he had reached the rank of Lance Corporal. He was discharged medically unfit.
5. On 10 January 1996, the applicant injured his back during a company organised combat fitness test when he was required to lift a man twice his weight in what is described as a fireman’s carry.
6. On 19 March 1997, a delegate under the Act admitted liability for “chronic back pain due…

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 [2003] AATA 1005
Case: [2003] AATA 1005
Decision Date: 7 October 2003

CaseChat Overview and Summary

The case of Moore and Comcare involved the applicant seeking a review of a decision regarding their entitlement to workers' compensation benefits. The applicant, who had suffered an injury, was contesting the determination of their capacity to work and the assessment of their potential earnings from suitable employment. The case was heard by the Administrative Appeals Tribunal.

The central legal issues in this case were whether the applicant was able to work and, if so, the nature of the work they could perform. Additionally, the court needed to determine what constituted "suitable employment" for the applicant and assess the rate of possible earnings from such employment. These issues were crucial in deciding the applicant's entitlement to ongoing compensation benefits.

The Tribunal examined the evidence presented and compared it to previous cases such as Pulitiano v Telstra and Comcare v Line. The court found that the decision-maker had appropriately considered the evidence and applied the relevant statutory provisions. The Tribunal concluded that the applicant's capacity to work and the assessment of suitable employment were correctly determined, affirming the original decision. Consequently, the Tribunal upheld the decision under review, maintaining the original determination of the applicant's benefits and entitlements.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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		DANIEL PAUL MOORE