Schmied and Comcare - [2003] AATA 434

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 434
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/1002
GENERAL ADMINISTRATIVE DIVISION

Re: STEVEN ANTHONY SCHMIED
Applicant

And: COMCARE
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             13 May 2003
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member

COMPENSATION - injury to shoulder whilst riding mountain bicycle ‑ whether medical or therapeutic treatment
Safety, Rehabilitation and Compensation Act 1988 ss4(1), 14(1), 16(1)
Comcare v Watson (1997) 73 FCR 273
Thiele v Commonwealth (1990) 22 FCR 342
REASONS FOR DECISION
13 May 2003  G.D. Friedman, Member
1.      This is an application by Steven Anthony Schmied (the applicant) for review of a decision of a delegate of Comcare (the respondent) dated 28 August 2002. The delegate affirmed a determination of the respondent dated 15 April 2002 to reject the applicant’s claim for compensation for a soft tissue and ligament damage to the AC joint - left shoulder.
2.      At the hearing of this matter on 5 May 2003 Mr B. Turner, an advocate with the Returned & Services League of Australia, represented the applicant and Mr M. Croyle of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T25), together with four exhibits (Exhibits A1‑A4) tendered by the applicant and one exhibit (Exhibit R1) tendered by the respondent.
BACKGROUND
4.      The applicant was born on 12 July 1971 and enlisted in the Australian Army on 14 December 1992. At the relevant time he served in the Directorate of Logistics Program Management - Air Force in Melbourne with the rank of Captain, and was discharged on 10 December 2001, when he transferred to the Inactive Army Reserve. In 1994 the applicant injured his right knee in the course of his service, and the respondent accepted liability for this condition.
5.      On 1 April 1997 the applicant suffered a hyperextension injury to his left shoulder while surfing (the surfing injury). On 17 July 1999 he suffered soft tissue and ligament damage to his left shoulder while riding a bicycle at Eastern View, Victoria (the bicycle injury). On 2 September 1999 the applicant lodged a claim for compensation for soft tissue and ligament damage, AC joint separation and fracture of collarbone sustained in the course of service. On 20 June 2000 the respondent determined that it was not liable to pay compensation to the applicant for soft tissue and ligament damage to AC joint on the grounds that the incidents that caused the injury were not part of a service-authorised sporting activity and he was not on duty at the time of the incidents.
6.      On 18 July 2000 the applicant requested a reconsideration of the determination and lodged additional information to support his claim that mountain bicycle riding was part of a rehabilitation program planned by his physiotherapist in conjunction with his orthopaedic surgeon and general practitioner in respect of his compensable right knee condition. On 21 February 2001 the…

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 Schmied and Comcare

Details

AGLC: Schmied and Comcare [2003] AATA 434
Case: [2003] AATA 434
Decision Date: 13 May 2003

CaseChat Overview and Summary

Steven Anthony Schmied applied for a review of a decision by Comcare to reject his claim for compensation for a soft tissue and ligament damage to his left shoulder. The dispute centred on whether the injury Schmied sustained while riding a mountain bicycle qualified as medical or therapeutic treatment under the Safety, Rehabilitation and Compensation Act 1988. The Tribunal was required to determine if the activity that resulted in the injury was part of a rehabilitation program planned by medical professionals, and if it constituted therapeutic treatment as defined in the Act. The court examined the nature of the injury, the context in which it occurred, and whether it was part of a rehabilitation program as required by the legislation.

The Tribunal found that Schmied's account of the incident was inconsistent and less credible than the written descriptions provided earlier. It was satisfied that the injury occurred under circumstances that exceeded what could be considered a reasonable part of a rehabilitation program. The Tribunal concluded that the activity leading to the injury was not therapeutic treatment or medical treatment as defined by the Act. Consequently, Comcare was not liable to pay compensation to Schmied under section 16(1) of the Act.

The Tribunal affirmed the decision under review, rejecting Schmied's claim for compensation.

Orders