Parton and Comcare (Compensation) - [2016] AATA 1076

Parton and Comcare (Compensation) [2016] AATA 1076 (22 December 2016)

Division

GENERAL DIVISION

File number

2015/3640

Vanessa Parton

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal Dr James Popple, Senior Member

Date 22 December 2016

Place Canberra
Comcare’s decision on 19 June 2015 is set aside and, in substitution, the following decision is made:
Comcare is liable, under s 14 of the Safety, Rehabilitation and Compensation Act 1988, to pay compensation in respect of the injury that the applicant sustained when she collected her bags from the luggage carousel at Perth Airport on 25 October 2014. Comcare shall pay the applicant’s costs of these proceedings.

..................[sgd]......................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — Applicant had pre-existing lumbar spine condition — Applicant travelled in the course of her employment — whether Applicant suffered injury when lifting bags at airport during travel — whether Applicant gave Comcare notice in writing of injury as soon as practicable after becoming aware of it — whether failure to give notice resulted from ignorance, mistake or from any other reasonable cause — decision under review set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 33(1)(c)
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5A(1)(b), 5B, 14, 53(1)(a), 53(3), 67(8)

CASES
Howes v Comcare [2016] FCA 1521
Jones v Dunkel (1959) 101 CLR 298
Kumar and Minister for Immigration and Citizenship (2009) 107 ALD 178
Military Rehabilitation and Compensation Commission v May [2016] HCA 19

REASONS FOR DECISION
Dr James Popple, Senior Member
22 December 2016
Summary

I set aside Comcare’s decision that it is not liable to compensate the applicant for her injury. The applicant injured her lumbar spine when she collected her bags from the luggage carousel at Perth Airport while returning to Canberra from a deployment to Christmas Island. She suffered an injury for the purposes of s 5A(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). She failed to comply with the requirements of s 53(1) because she did not give Comcare notice of her injury as soon as practicable after she became aware of it. However, that failure was due to ignorance or mistake so, because of s 53(3), she is taken to have given Comcare notice under s 53. Comcare is liable, under s 14, to pay compensation in respect of her injury.
Background
Ms Vanessa Parton started working for the Australian Federal Police (the AFP) in 2003. On 21 August 2014, she was deployed to Christmas Island. When her deployment ended, she returned to Canberra by plane on 25 and 26 October 2014, staying overnight in Perth.
On 15 January 2015, Ms Parton made a claim for compensation for “L4/5 spondylolisthesis” and “L4/5 disc bulge”. She said that the injury had happened on the flight home from Christmas Island. On 6 March 2015, Comcare denied that it was liable to pay her compensation under s 14 of the SRC Act.
On 7 May 2015, Ms Parton requested a reconsideration…

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 Parton and Comcare (Compensation)

Details

AGLC: Parton and Comcare (Compensation) [2016] AATA 1076
Case: [2016] AATA 1076
Decision Date: 22 December 2016

CaseChat Overview and Summary

This matter concerned an application by Ms Parton for review of Comcare’s decision to deny liability for compensation. Ms Parton alleged she sustained an injury in the primary sense, as defined by section 5A(1)(b) of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), when she lifted her bags at Perth Airport during a work-related trip. Comcare disputed that Ms Parton suffered an injury during her travel, arguing that any pre-existing lumbar spine condition was not significantly contributed to by her employment, and therefore did not constitute a disease under section 5B of the SRC Act. Comcare also contended that Ms Parton failed to provide written notice of the alleged injury as soon as practicable, as required by section 53(1)(a) of the SRC Act. The review was heard by Dr James Popple, Senior Member.

The Tribunal was required to determine whether Ms Parton suffered an injury in the primary sense arising in the course of her employment. It also needed to consider whether Ms Parton had a disease as defined by the SRC Act, and if an injury was found, whether she had complied with the notice requirements under section 53 of the SRC Act.

The Senior Member found, on the balance of probabilities, that Ms Parton did sustain an injury in the primary sense when collecting her bags at Perth Airport on 25 October 2014. The Tribunal accepted Ms Parton's account of the incident and her subsequent pain, distinguishing it from her pre-existing lumbar spine condition. The Senior Member determined that the injury arose in the course of her employment. Furthermore, the Tribunal found that Ms Parton's failure to provide written notice of the injury as soon as practicable was due to ignorance or mistake, and that there was a reasonable cause for this failure.

Comcare’s decision of 19 June 2015 was set aside. In its place, the Tribunal ordered that Comcare is liable to pay compensation to Ms Parton in respect of the injury sustained at Perth Airport on 25 October 2014, and that Comcare shall pay Ms Parton’s costs of the proceedings.

Orders

Orders of the court

Comcare’s decision on 19 June 2015 is set aside and, in substitution, the following decision is made:

Comcare is liable, under s 14 of the Safety, Rehabilitation and Compensation Act 1988, to pay compensation in respect of the injury that the applicant sustained when she collected her bags from the luggage carousel at Perth Airport on 25 October 2014. Comcare shall pay the applicant’s costs of these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 21 July 2015, Ms Parton applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 19 June 2015 to affirm its determination that Comcare is not liable to pay compensation to Ms Parton.Issues Ms Parton says that she injured her back when she picked up her bags from the luggage carousel at Perth Airport, while travelling from Christmas Island to Canberra. This, she says, was an injury in the primary sense[1]—an injury other than a disease—arising in the course of her employment (s 5A(1)(b) of the SRC Act), for which Comcare is liable to pay her compensation (s 14).[1] This has sometimes been characterised as an “injury simpliciter”. But the majority of the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 said that that term had been used “not necessarily helpfully” and referred, instead, to an injury in the “primary sense” of that word: see at [42], [45]–[61] per French CJ, Kiefel, Nettle and Gordon JJ. Comcare disputes that Ms Parton injured her back at Perth Airport, or at any other time during her trip from Christmas Island to Canberra. Comcare concedes that Ms Parton has a lumbar spine condition, which means that she suffers from an ailment or an aggravation of an ailment. But Comcare says that that ailment or aggravation was not contributed to, to a significant degree, by her employment. Accordingly, Comcare says, Ms Parton does not suffer from a disease as defined by s 5B of the SRC Act, or an injury as defined by s 5A, and Comcare is not liable to pay her compensation under s 14. Comcare also says that, even if Ms Parton did suffer an injury, the SRC Act does not apply in relation to her injury because she did not give Comcare notice in writing of the injury as soon as practicable after she became aware of it, as required by s 53(1)(a). So, the issues in this review are:·Does Ms Parton suffer from a disease?·Did Ms Parton suffer an injury in the primary sense (an injury other than a disease)?·If Ms Parton did suffer an injury, did she give Comcare notice of her injury under s 53 of the SRC Act?Events before Ms Parton returned from Christmas Island I make the findings set out in [12]–[19] below, on the balance of probabilities. These findings are based on the evidence before me, especially evidence from Ms Parton and medical records. These findings are generally not contested. In September 2012, Ms Parton fractured the fifth metatarsal in her right foot. She wore an orthopaedic boot on her right foot for seven or eight months in order to promote its healing. When the orthopaedic boot was removed, in around June 2013, Ms Parton was experiencing a dull ache down her right calf and across the top of her right foot. On the advice of her doctors, she took painkillers, refrained from playing high-impact sports, and wore “sensible” shoes. In June or July 2014, she returned to playing netball, which she had played before she broke her foot.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File number	2015/3640
Vanessa Parton
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr James Popple, Senior Member
Date	22 December 2016
Place	Canberra