Nairn and Comcare - [2004] AATA 121

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 121

ADMINISTRATIVE APPEALS TRIBUNAL )
)

) A2002/220

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID ALEX EDWARD NAIRN

Applicant

And

COMCARE

Respondent
DECISION

Tribunal

Ms G Ettinger - Senior Member

Date 10 February 2004

PlaceCanberra
DecisionThe decision under review is affirmed.
Costs may not be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988.

Ms G Ettinger
Senior Member

CATCHWORDS

Compensation – right knee injured in soccer game May 1996- compensable – further incident in October 1996 followed by claim for back injury – Applicant claimed causal connection due to altered gait – conflicting evidence regarding continuing effects of back injury between 1997 and 1999 when injury/aggravation occurred at home - 10 percent permanent impairment previously accepted - whether incapacity for work – decision to cease liability affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19

CASE LAW

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Comcare v Mooi (1996) 69 FCR 439

Casarotto v Australian Postal Commission (1989/90) 17 ALD 321

Commonwealth v Beattie (1981) 53 FLR 191

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Gamma Illumination Pty Ltd v Cvrakalj [2003] NSWCA 237 (4 September 2003).

Koorangang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

REASONS FOR DECISION

10 February 2004

Ms G Ettinger - Senior Member

The application before the Administrative Appeals Tribunal (“the Tribunal”) was that of Mr David Nairn appealing against the decision of Comcare dated 17 April 2002 (T67), which affirmed a decision made on 19 February 1997 (T18), and a decision made on 24 August 2000 (T62). In its decision of 19 February 1997 (T18), Comcare accepted liability for “a secondary condition of acute lumbar disc swelling at L3/4 and L4/5 resulting in incapacity and medical expenses for the period from 31 October 1996 to 12 February 1997.” In the decision of 24 August 2000 at T62, Comcare held that pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, (“the Act”), Comcare was not liable for the exacerbation of Mr Nairn’s back condition claimed to have occurred on 10 July 1999.

I noted by way of background that Mr Nairn’s application for review of the decision of 24 August 2000 was made on 12 February 2002, some 18 months outside the statutory period (section 62 of the Act). The reasons the Applicant gave to justify the late application were that he had been suffering crippling pain and severe depression, and had not been able to work in the interim. The Respondent held that as it had a significant body of medical evidence regarding Mr Nairn, it would not be prejudiced by the late application, and thus exercised the discretion to allow the application, which it ultimately affirmed.

At the Tribunal Hearings,…

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 Nairn and Comcare

Details

AGLC: Nairn and Comcare [2004] AATA 121
Case: [2004] AATA 121
Decision Date: 10 February 2004

CaseChat Overview and Summary

The case of Nairn and Comcare involved an individual who sustained a right knee injury during a soccer game in May 1996 and later claimed that a subsequent back injury was related to the initial knee injury. The applicant argued that the altered gait caused by the knee injury led to the back injury, which occurred in October 1996. The dispute centred on whether the back injury was compensable, and if the applicant was incapacitated for work. The case was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court included determining whether the back injury was a direct result of the knee injury, and if there was a causal connection between the initial injury and the subsequent claim. Additionally, the court needed to assess whether the applicant's altered gait due to the knee injury caused or contributed to the back injury. The court also had to consider if the applicant's back injury led to a permanent impairment and if it incapacitated him for work.

The court examined the evidence presented and concluded that there was no causal connection between the knee injury and the back injury. The court found that the evidence was conflicting regarding the continuing effects of the back injury between 1997 and 1999 when the alleged injury or aggravation occurred at home. The court affirmed the decision to cease liability for the back injury claim, noting that a 10 percent permanent impairment had been previously accepted. The court determined that the applicant had not established that the back injury was caused by the initial knee injury or that it led to incapacity for work.

The court affirmed the decision to cease liability for the back injury claim, and no further compensation was awarded for the alleged back injury. The court's decision was based on the lack of a causal connection between the initial knee injury and the subsequent back injury, as well as the conflicting evidence regarding the continuing effects of the back injury. The court also found that the applicant had not demonstrated that the back injury led to incapacity for work.

Orders