Riley and Comcare - [2005] AATA 23

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 23
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos S2003/213, GENERAL ADMINISTRATIVE DIVISION ) S2004/59 & S2004/194

Re RAYMOND JOHN RILEY

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Date11 January 2005
PlaceAdelaide

Decision
The Tribunal:

(a)      sets aside the decisions under review, and in place of those decisions, decides that Mr Riley is entitled to compensation in respect of his incapacity for work on 21 March, 23 April, 1 and 2 May, 13 and 14 June and 11 November 2002, and is entitled to the medical and physiotherapy expenses he has claimed;

(b)      reserves liberty to apply within 21 days in relation to the costs of the proceedings; and

(c)     orders that in the absence of such an application, the respondent pay the costs of the proceedings.

(Signed)
  D G Jarvis
  Deputy President

CATCHWORDS
COMPENSATION – Commonwealth employee – journey accident – neck pain – pre-existing headaches and neck pain – claim by applicant that neck pain due to injury sustained in accident – neck condition aggravated by bus travel – reconsideration of own motion invalid to the extent that it purported to set aside earlier reviewable decision – meaning of “as of” – decisions under review set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 14, 16, 19 and 62(1)
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Australian Postal Corporation v Bessey [2001] FCA 266
Rosillo v Telstra Corporation Limited (2003) 77 ALD 296
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
REASONS FOR DECISION

11 January 2005   Deputy President D G Jarvis

1.      Trevor John Riley was involved in a motor vehicle accident on 22 October 1992 on his way to work. A van collided into the rear of a station sedan being driven by Mr Riley when it was stationary behind a line of other vehicles. As a result of the collision, Mr Riley developed pain in his neck. He was absent from work on the day of the accident, which was a Thursday, and on the next day, but returned to work on the following Monday.
2.      Mr Riley consulted his general practitioner, Dr Potter, about the effects of the accident on the day it occurred, but did not consult him again about its after effects (which were by then, he said, pain in his neck) until nearly five months later. Dr Potter later referred Mr Riley for physiotherapy treatment to his neck, and Mr Riley received physiotherapy treatment to his neck spasmodically on various dates commencing on 5 October 1994. He also had an x-ray of his cervical spine on 1 December 1994. Comcare met his medical expenses up to and including 16 November 1995. He was also paid incapacity payments for the two days for which he was absent from work in October 1992.
3. Mr Riley claims that after 16 November 1995, his neck condition flared up intermittently, and he saw Dr Potter, and…

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 Riley and Comcare

Details

AGLC: Riley and Comcare [2005] AATA 23
Case: [2005] AATA 23
Decision Date: 11 January 2005

CaseChat Overview and Summary

Riley brought proceedings in the Administrative Appeals Tribunal (the Tribunal) against Comcare, seeking compensation for injuries sustained in a motor vehicle accident while travelling to work. Riley's claim included a dispute over whether his neck pain, which had been exacerbated by bus travel, was due to the accident or a pre-existing condition. The Tribunal had previously considered Riley’s claim but found that his neck pain was not due to the accident. Riley then applied for a reconsideration of the Tribunal’s decision. Comcare opposed the reconsideration, arguing it was invalid as it attempted to set aside an earlier reviewable decision. The Tribunal subsequently reconsidered the matter and found that Riley was entitled to compensation for his incapacity and medical expenses. Comcare appealed to the Full Federal Court, which found the reconsideration invalid to the extent that it purported to set aside the earlier reviewable decision.

The primary legal issue before the court was whether the reconsideration was invalid to the extent it attempted to set aside the earlier reviewable decision. The court examined the meaning of the phrase “as of” in the Safety, Rehabilitation and Compensation Act 1988 and whether it meant that the earlier reviewable decision was to be disregarded. The court also considered relevant case law, including Tippett v Australian Postal Corporation, Australian Postal Corporation v Bessey, Rosillo v Telstra Corporation Limited, and Australian Postal Corporation v Oudyn. These cases provided guidance on the interpretation of statutory provisions and the nature of reviewable decisions under the Act.

The Full Federal Court held that the reconsideration was invalid to the extent that it purported to set aside the earlier reviewable decision. The court found that the phrase “as of” in the Act meant that the earlier reviewable decision was to be disregarded. This interpretation aligned with the purpose of the Act to provide a fair and effective review process for Commonwealth employees. The court set aside the decisions under review and decided that Riley was entitled to compensation for his incapacity and medical expenses. The court also reserved liberty to apply for costs and ordered that in the absence of such an application, Comcare would pay the costs of the proceedings.

The court's orders included setting aside the earlier decisions, determining that Riley was entitled to compensation for his incapacity and medical expenses, and reserving liberty to apply for costs within 21 days. If no application was made within that period, Comcare was ordered to pay the costs of the proceedings. This decision provided clarity on the scope of reconsiderations under the Act and reinforced the importance of fair review processes for Commonwealth employees.

Orders

Orders of the court

The Tribunal:

(a) sets aside the decisions under review, and in place of those decisions, decides that Mr Riley is entitled to compensation in respect of his incapacity for work on 21 March, 23 April, 1 and 2 May, 13 and 14 June and 11 November 2002, and is entitled to the medical and physiotherapy expenses he has claimed;

(b) reserves liberty to apply within 21 days in relation to the costs of the proceedings; and

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.