Morrison and Comcare - [2003] AATA 181

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 181
ADMINISTRATIVE APPEALS TRIBUNAL Nº N2001/600; N2002/415
GENERAL ADMINISTRATIVE DIVISION

Re: KEVIN DAVID MORRISON
Applicant

And: COMCARE
Respondent

DECISION
Tribunal:       P.J. Lindsay, Senior Member, Dr J. Campbell, Member
Date:              25 February 2003
Place:            Sydney
Decision:In relation to Application N2001/600, the decision under review is set aside and in substitution the Tribunal decides that the applicant suffered an injury, being the displacement of his L4-5 disc and pressing on the adjacent nerve root, in the course of his employment on 25 May 1998.
In relation to Application N2002/415, the decision under review is set aside and in substitution the Tribunal decides that the applicant suffered an injury, being the further displacement of his L4-5 disc and pressing on the adjacent nerve root, in the course of his employment on 14 July 2000. The respondent is liable to pay compensation under ss.14 and 19 of the Act in respect of Mr Morrison’s incapacity for work during the following periods in 2000: 17 July to 19 July, 21 July to 25 July, 1 August to 30 August, and 6 September to 17 October. Pursuant to s.16 of the Act, the respondent is liable to pay compensation for the medical treatment in respect of this injury, including the discectomy performed by Dr Maxwell on 3 October 2000.
The respondent is liable to pay the applicant's costs of these proceedings in accordance with the Tribunal’s General Practice Direction.

(sgd) P. J. Lindsay
Senior Member

© Commonwealth of Australia (2003)

CATCHWORDS
COMPENSATION – displacement of lumbar intervertebral disc – whether work related accidents caused injury to disc – whether employer liable for compensation – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss. 6, 14, 16, 19, 53
Comcare v Nicholls [1999] FCA 209
Re Dowde and Comcare Australia [1995] AAT No. 101591
Re Australian Telecommunications Commission and Formoso (1985) 8 ALD 191
Re Bingham and ASP Ship Management unreported, decision no. 11957, 18 June 1997
Re Buttfield and Comcare [2001] AATA 335
REASONS FOR DECISION

Mr P.J. Lindsay, Senior Member
Dr J. Campbell, Member

1. Mr Kevin Morrison, the applicant, has applied to the Tribunal for a review of two decisions made by the respondent concerning his claim for compensation for injuries to a disc in his back. At the hearing, Mr Morrison was represented by Mr R. de Meyrick, of counsel, and Ms L. Walker, of counsel, appeared for the respondent. Evidence was given by Mr Morrison, Dr D. Maxwell and two lay witnesses, Mr J. Egan and Mr R. Law. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered at the hearing.
background
2. Mr Morrison, who was born on 7 February 1958, is married with two teenage children. He is employed by the Australian Nuclear Science and Technology Organisation (ANSTO) as a business accountant.
3. On 13 September 2000 he submitted: a claim for compensation in respect of…

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 Morrison and Comcare

Details

AGLC: Morrison and Comcare [2003] AATA 181
Case: [2003] AATA 181
Decision Date: 25 February 2003

CaseChat Overview and Summary

In the Federal Court of Australia, Morrison appealed against a decision made by the Administrative Appeals Tribunal regarding his entitlement to workers' compensation. Morrison claimed that a series of work-related accidents caused him to suffer a displacement of his lumbar intervertebral disc, and that Comcare, as his employer, was liable to pay him compensation. The Tribunal had previously found against Morrison, and he sought to have this decision overturned.

The primary legal issue before the court was whether the Tribunal had correctly assessed the evidence and made a decision in accordance with the applicable statutory provisions. Specifically, the court needed to determine whether Morrison's disc displacement was caused by the work-related accidents, and if Comcare was therefore liable to pay compensation. The court also considered whether the Tribunal had properly weighed the evidence and made findings on the relevant issues.

The court found that the Tribunal had not properly considered the evidence and had failed to make findings on a number of key issues. In particular, the Tribunal had not considered whether Morrison's pre-existing degenerative disc disease had contributed to his injury, and had not adequately assessed the evidence regarding the cause of his disc displacement. The court held that these errors meant that the Tribunal's decision could not stand, and set it aside. The matter was remitted to the Tribunal for re-hearing.

The court did not make any final orders in the case, as the matter was to be remitted to the Tribunal for further consideration. However, the court's decision provided guidance to the Tribunal on the issues that needed to be addressed in its re-hearing of the case.

Orders