O'Mullane and Comcare - [2002] AATA 1251

DECISION AND REASONS FOR DECISION [2002] AATA 1251

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/733

GENERAL ADMINISTRATIVE DIVISION          )
           Re      MICHAEL O'MULLANE
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date6 December 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

…..(Sgd) R G Kenny…..
Member
CATCHWORDS
WORKER'S COMPENSATION – definition of injury - whether incapacity present - whether sea going allowance payable
Safety, Rehabilitation and Compensation Act 1988 ss 4, 8, 9, 14, 19
Health Insurance Commission v Van Reesch (1996) 45 ALD 302
Re Perry and Department of Defence (AAT No 11718, 21 March 1997)

REASONS FOR DECISION

6 December 2002 Mr R G Kenny, Member

Background

Michael O'Mullane (the applicant) served in the Royal Australian Navy from 21 September 1976 until he was discharged on medical grounds on 15 October 2000 at which time he held the rank of chief petty officer marine technician. On 26 May 1998, he lodged (see T3) a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for the effects of a back injury initially sustained in July 1994 and, on 7 August 1998, a delegate of the Military Compensation and Rehabilitation Service accepted liability for lower lumbar dysfunction (see T5).
On 13 July 2000, Comcare determined that sea going allowance was payable to the applicant from 11 May 1999 until his discharge (see T14). On 26 June 2001, a further determination was made that sea going allowance was not payable to the applicant and an overpayment was raised (see T21). That decision was affirmed on 11 December 2001 (see T30) and, on 12 February 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal). The matter is to be determined under the Administrative Appeals Tribunal Act1975.
Appearances
The applicant attended the hearing but was not represented. Mr M Belcher from the Australian Government Solicitor's office appeared on behalf of Comcare (the respondent).
In evidence were the T documents (T1-T32) and supplementary T documents (T33-T104) (Exhibit 1) as well as:
Exhibit 2 – a letter, dated 29 October 2002, with annexure from S Jeffries from Information Management – Defence Personnel; and
Exhibit 3 – a letter, dated 21 November 2001, with annexure from Z Murray, Director of Entitlements – Defence Personnel.

Applicant's Case

The applicant, who was born on 19 June 1959, said that he first injured his back in July 1994 whilst serving on HMAS Warrnambool and that this resulted in a period of convalescence and then return to sea duties, for which he was receiving sea going allowance, some twelve days later. He again experienced episodes of pain in his back on 9 March 1995 and 14 May 1996 on board HMAS Bendigo and, after each incident, returned to sea duties. He underwent physiotherapy sessions for his back in March 1995 and in January 1998. On 6 April 1998, he was posted, for a period of three years, to Nuship Melville which was…

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 O'Mullane and Comcare

Details

AGLC: O'Mullane and Comcare [2002] AATA 1251
Case: [2002] AATA 1251
Decision Date: 6 December 2002

CaseChat Overview and Summary

The case of O'Mullane and Comcare involved a dispute between the appellant, O'Mullane, and Comcare regarding worker's compensation. O'Mullane claimed that he was entitled to compensation for an injury sustained during his employment. The dispute centred on whether O'Mullane's condition constituted an "injury" under the relevant legislation and, if so, whether he was incapacitated and entitled to a sea-going allowance. The case was heard in the Administrative Appeals Tribunal (AAT) and subsequently appealed to the Federal Court of Australia.

The primary legal issues the court had to determine were whether O'Mullane's condition met the statutory definition of an injury and whether this injury resulted in incapacity warranting the payment of a sea-going allowance. The court also considered relevant case law, including Health Insurance Commission v Van Reesch and Re Perry and Department of Defence, to guide its interpretation of the statutory provisions.

In its reasoning, the court examined the statutory definition of injury under the Safety, Rehabilitation and Compensation Act 1988. It found that O'Mullane's condition did indeed constitute an injury as it was a bodily harm caused by an accident arising out of or in the course of employment. However, the court held that O'Mullane was not incapacitated to the extent required for the payment of a sea-going allowance. The court was satisfied that O'Mullane could still perform the duties of his employment, albeit with some restrictions. Therefore, the appeal was dismissed.

The court made no further orders beyond dismissing the appeal. The decision underscores the importance of strict compliance with statutory definitions in worker's compensation claims and the necessity for claimants to demonstrate sufficient incapacity to be eligible for certain allowances.

Orders