Ross and Comcare

Case [2010] AATA 928

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 928

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4941

GENERAL ADMINISTRATIVE DIVISION )
Re GARNET ROSS

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Senior Member K S Levy RFD, and
Associate Professor J B Morley RFD, Member

Date19 November 2010

PlaceBrisbane

Decision

The decision is affirmed.

................[Sgd]..............................

Senior Member

CATCHWORDS

WORKER’S COMPENSATION – Incapacity payments for applicant’s back condition 0 Consideration of the applicant’s entitlement under the Safety, Rehabilitation and Compensation Act 1988 (Cth) despite successful claim for damages under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) – Has the applicant been incapacitated from work during the relevant period – Is compensation payable in relation to the injury – Applicant not able to claim compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) – Applicant not incapacitated from work during the relevant period – Applicant’s injury has been resolved – Decision under review affirmed.

The Acts Interpretation Act 1901 (Cth) s 15AA

Compensation (Commonwealth Government Employees) Act 1971 Act (Cth) ss 45, 99

Evidence Act 1995 (Cth) ss 118-199

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 19, 24, 25, 48, 124, 248

Australian Finance Direct Limited v Director of Consumer Affairs Victoria [2007] HCA 57

AWB Ltd v Cole (2006) 152 FCR 382

Brennan v Comcare (1994) 122 ALR 615

Clark v Ryan (1960) 103 CLR 486

Esso Australia Resources Ltd v Commissioner of Taxationof the Commonwealth of Australia (1999) 201 CLR 49

Fabre v Arenales (1992) 27 NSWLR 437

Farnaby and MRCC [2007] AATA 1792

Hazleton and Civil Aviation Safety Authority [2010] AATA 693

Ho v Powell (2001) 51 NSWLR 572

Hoyle v Telstra CorporationLtd (1997) 75 FCR 390

Jones v Dunkel (1959) 101 CLR 298

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Mead v Mead [2007] HCA 25

Murray v Murray (1960) 33 ALJR 521

Phillips and Military Rehabilitation and Compensation Commission [2008] AATA 336

Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355

R v Darrington and McGauley [1980] VR 353

Graham and Military Rehabilitation and Compensation Commission [2006] AATA 286

Roads and Traffic Authority v Royal [2008] HCA 19

St Clair v Timtalla Pty Ltd Anor [2010] QSC 296

REASONS FOR DECISION

19 November 2010 Senior Member K S Levy RFD, and
Associate Professor J B Morley RFD, Member

INTRODUCTION

1.      The applicant, Garnet Ross, suffered an injury to his back whilst employed by the ACT Fire Brigade, on 6 March 1983.  Liability was accepted by Comcare and he received incapacity benefits as a consequence.  The applicant never returned to work and was finally retired on the grounds of invalidity on 12 September 1984.  Since 1984 to the present he has received fortnightly superannuation payments. 

2.      On 8 June 2007, Mr Ross claimed weekly incapacity payments under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the 1988 Act”) for his back condition. An initial determination was made on 25 June 2007 which…

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AGLC
Ross and Comcare [2010] AATA 928
Case
[2010] AATA 928
Decision Date

CaseChat Overview and Summary

The matter of Ross and Comcare involved the applicant seeking incapacity payments for a back condition under the Safety, Rehabilitation and Compensation Act 1988 (Cth), despite having previously made a successful claim for damages under the Compensation (Commonwealth Government Employees) Act 1971 (Cth). The applicant argued that he was entitled to compensation under the 1988 Act as he had been incapacitated from work during the relevant period. Comcare, on the other hand, contended that the applicant was not incapacitated during the relevant period, and his injury had been resolved, making him ineligible for compensation under the 1988 Act.

The court was required to determine whether the applicant had indeed been incapacitated from work during the relevant period, and if so, whether compensation was payable in relation to the injury. The court considered the evidence presented and the legislative framework, including relevant sections of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and the Compensation (Commonwealth Government Employees) Act 1971 (Cth). The court also referred to various precedent cases to assist in its reasoning.

Upon reviewing the evidence and the applicable law, the court found that the applicant had not been incapacitated from work during the relevant period and that his injury had been resolved. Therefore, the applicant was not eligible to claim compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The court affirmed the decision under review, stating that the applicant was not entitled to the incapacity payments sought. This decision highlights the importance of considering the specific conditions and requirements set out in relevant legislation when determining entitlement to compensation.

The final order was that the decision under review was affirmed. The applicant was not entitled to the incapacity payments sought under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Orders

Orders of the court

The decision is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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