Ross and Comcare - [2002] AATA 51

DECISION AND REASONS FOR DECISION [2002] AATA 51

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/40

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Michael James Ross
  Applicant
           And    Comcare
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member & Dr P Staer, Member

Date29 January 2002
PlacePerth

Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed

........(sgd R D Fayle).............
Senior Member
CATCHWORDS
WORKERS COMPENSATION – whether applicant travelling to obtain a medical certificate or medical treatment, for a physical or mental injury arising out of, or in the course of, the applicant's employment; whether the applicant suffered a mental injury or an aggravation thereof, arising out or, or in the course of his employment; issues of credibility.
Safety, Rehabilitation Act 1988 – ss4(1) definition of "injury"; 6(1)(b)(vii)(A) & (B); 14(3)

REASONS FOR DECISION

29 January 2002 Mr R D Fayle, Senior Member & Dr P Staer, Member

This is an application by Mr Michael James Ross ("the applicant") to review a decision by the Commonwealth Department of Veterans' Affairs, Military Compensation and Rehabilitation Service for Comcare ("the respondent"), made on 18 June 1998 and affirmed on 6 January 2000 by a delegate. The decision was that the applicant was not on duty or travelling to or from duty, or travelling to obtain a medical certificate or medical treatment for a compensable condition, at the time of the injury on 10 December 1996.
The applicant was represented by Mr Henry Christie, solicitor. Mr John Wallace of counsel represented the respondent. The following persons gave evidence for the applicant:

The applicant;
Mrs Carol Penn;
Ms Samantha Luxford; and
Dr John Penman.

Evidence was given by the following persons for the respondent:

Captain Angus Bestic; and
Major Christopher Miles.
Each gave their evidence by telephone.

The Tribunal had before it documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), sequentially identified as T1 to T129, which folios are numbered sequentially 1 to 272. The following exhibits were taken into evidence:
A1      Statement by Dr Peter Zariffa;
A2a     Statement of Michael Ross dated 22 March 2001;
A2b     Statement of Michael Ross dated 20 September 2001;
A3      Road map of relevant area;
A4      Statement of Samantha Jane Luxford signed 4 October 2001;
A5      Statement of Carol Penn signed 4 October 2001;
A6      Report of Dr John Penman dated 18 January 2001;
R1      Statement of Michael Ross dated 4 April 1997;
R2      Map of Holsworthy Barracks
R3      Application for leave statement dated 6 December 1995;
R4a     WA Police Department Traffic Convictions;
R4b     Queensland Government Traffic Record;
R5      Statement by Angus James Bestic of 7 February 2001, signed on 26 February 2001;
R6      Statement by Christopher Gerard Miles; and
R7      File of summonsed documents from Liverpool Health Services.
It is not in dispute that the applicant was admitted to the 1 Field Hospital, as a patient, on 1 November 1996 and discharged on 10 December 1996. That treatment was for depression. Also,…

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.

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Details

Case: [2002] AATA 51
Decision Date: 29 January 2002

CaseChat Overview and Summary

The case of Ross and Comcare was heard by the Administrative Appeals Tribunal (AAT) and involves a claim for workers' compensation. The applicant, Ross, alleged that he suffered a mental injury or an aggravation of an existing mental injury while in the course of his employment. The dispute centred on whether Ross was entitled to compensation for travel expenses incurred while obtaining a medical certificate or treatment for a mental injury that arose from or in the course of his employment. Comcare, the respondent, contested the claim, arguing that Ross had not satisfied the statutory requirements for compensation.

The primary legal issues for the Tribunal to decide were whether Ross's travel to obtain a medical certificate or treatment for a mental injury was compensable under the Safety, Rehabilitation and Compensation Act 1988. The court also needed to determine if Ross had indeed suffered a mental injury or an aggravation of a pre-existing condition, and assess the credibility of Ross's evidence regarding the circumstances of the alleged injury. These issues were critical in deciding whether Ross was entitled to compensation for his travel expenses under the Act.

The Tribunal considered the statutory definition of "injury" under the Act and examined the provisions concerning compensation for travel expenses related to medical treatment. The court found that for Ross to be entitled to compensation, the injury must arise out of, or in the course of, his employment, and the travel must be for obtaining a medical certificate or treatment. The Tribunal assessed the evidence provided by Ross, including expert opinions, to determine if he had suffered a mental injury or an aggravation of a pre-existing condition. After evaluating the credibility of Ross's evidence and considering the relevant statutory provisions, the Tribunal concluded that Ross was not entitled to compensation for his travel expenses, as he had not satisfied the necessary criteria under the Act.

The Tribunal dismissed Ross's application for compensation, finding that he had not proven that his travel was for obtaining a medical certificate or treatment for a mental injury arising out of or in the course of his employment. The Tribunal's decision was based on the statutory requirements and the assessment of the evidence presented. No further appeal was made, and the decision stands as the final outcome of the matter.

Orders