[2014] AATA 28
Division GENERAL ADMINISTRATIVE DIVISION File Number
2010/2489
Re
Lawrence Smith
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 22 January 2014 Place Canberra The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Mr R G Kenny, Senior Member
WORKER’S COMPENSATION – osteoarthritis of right hip – decision to reject the claim upheld by Tribunal at first hearing – appeal to Full Federal Court allowed and matter remitted to Tribunal – no material contribution by employment as meat inspector – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss. 4, 14
Smith v Comcare [2011] AATA 662
Smith v Comcare [2012] FCA 502
Smith v Comcare [2013] FCAFC 65Smith v Comcare [2013] AATA 796
REASONS FOR DECISION
Mr R G Kenny, Senior Member
22 January 2014
Under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), Lawrence Smith (“the applicant”) claimed compensation in relation to “right hip” and “nerve injury affecting right foot (occurred during hip replacement surgery)”. He alleged that this was related to his employment by the Commonwealth as a meat inspector from 1983 until 2008. On 10 December 2009, Comcare determined that there was no liability for conditions diagnosed as “osteoarthritis-pelvis”, “aseptic necrosis of bone (avascular necrosis)” and “injury to other & unspecified nerves-partial sciatic nerve palsy”. That determination was affirmed in a reviewable decision on 6 May 2010. On further review by the Administrative Appeals Tribunal (“the AAT”), the parties agreed that the relevant ailment for consideration was the aggravation of the applicant’s osteoarthritis of the right hip. The AAT affirmed the decision in relation to that ailment on 28 September 2011[1].
An appeal by the applicant to the Federal Court was dismissed on 18 May 2012[2]. On 28 June 2013, the Full Federal Court upheld the further appeal and remitted the matter to the AAT for further consideration and determination according to law[3]. The matter is to be determined without further evidence and on the basis of written submissions tendered by the parties[4].
[3] Smith v Comcare [2013] FCAFC 65 (per Buchanan J, Greenwood J agreeing; Bromberg J dissenting)
ISSUE
The majority of the Federal Court determined that it was not sufficiently clear in the AAT decision that the whole of the period of the applicant’s Commonwealth employment from 1983 was taken into account in assessing material contribution to his ailment. Rather, it determined, the AAT may have been distracted by its finding that the ailment had its onset in 1997 and may only have considered such contribution during the few years prior to 1997.
Mr John Mrsic, for the applicant, submitted that the relevant period of employment for the applicant’s claim was from 1983 until 1993, rather than, as submitted at the initial AAT hearing, from the whole of his Commonwealth employment from 1983 to 2008. In particular, this…
Continue reading Smith and Comcare
Sign in free to access the full text
- AGLC
- Smith and Comcare [2014] AATA 28
- Case
- [2014] AATA 28
- Decision Date
CaseChat Overview and Summary
The court examined the evidence provided by Mr Smith regarding his duties at Forbes and Wagga, focusing on the nature of the work, including the inspection of mutton carcases and other tasks. The court found that the duties involved repetitive bending and twisting, particularly during mutton inspection, which Mr Smith described as the most strenuous part of his job. However, the court concluded that the evidence did not support the claim that these duties materially contributed to the aggravation of his osteoarthritis of the hip. Instead, the court found that the condition was more likely attributed to heavy lifting, as opposed to the types of movement described by Mr Smith.
Based on this reasoning, the court affirmed the AAT's decision that there was no liability under section 14 of the Act for Comcare to pay compensation to Mr Smith for his osteoarthritis of the hip. The court found that there was no material contribution from the employment in question to the aggravation of the condition, and therefore, the decision under review was affirmed.
Orders
Orders of the court
Full text does not contain this section.
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
Ratio Decidendi
Legal Principle Established
Mr David Richards, for the respondent, submitted that the AAT had given consideration to the whole period of the applicant’s employment with the Commonwealth. He referred to the evidence summarised in the AAT reasons in relation to the applicant’s duties at both Forbes and Wagga. Because such consideration was given, it was sufficient, he submitted, for the AAT to confirm this and to affirm the decision under review. In the event that it did not do so, he submitted that there was no evidence of material contribution to the applicant’s ailment from 1983 to 1993 so that, in that case, the decision under review ought to be affirmed. CONSIDERATION In the reasons published in the initial decision, I set out the aspects of the applicant’s work at Forbes and at Wagga in relation to his inspection of mutton carcases and other duties as follows:13. For sheep, three stations were involved: fronts, viscera and final inspection. Mutton inspection was the most difficult because the process was faster than for beef and required more repetitive bending and twisting. This was particularly so for the fronts because these were hung very low. 18. [At Wagga], there was no inspection of pigs and Mr Smith spent about half of his time each on beef and mutton until 1993 and then dealt only with cattle. He was assigned regular overtime hours until 1993. He continued to undertake hygiene inspections and load out duties about once per week until about 2000 when meat inspectors were relieved of those functions. From 1993, Mr Smith worked overtime on about 10 to 12 Saturdays per year. In his statement, the applicant wrote that, at Forbes, the beef viscera were presented for inspection in a wheel barrow and that this involved him in more bending and stooping than when a conveyer table was operating. In particular, it necessitated lifting the livers, of 6 to 10 kg, out of the barrow to turn them over. However, this changed in 1983 when the barrows were replaced with a conveyer table for the beef viscera. Nevertheless, he wrote that the mutton inspection had always been the more difficult as it was faster and involved a lot more repetitive twisting and bending even though the mutton viscera were presented on a conveyer table. These were not as heavy as beef viscera but the table was low and he had to bend to turn the viscera over. The applicant, in his statement, described his mutton inspection duties at Wagga as worse than at Forbes in terms of speed, repetitiveness and the amount of twisting and bending involved, because the product was presented at a lower level. Also, he said that sheep were older at Wagga so there was more pathology to be removed. He described the mutton chain as the most strenuous he had worked at in any meat works and said that he dreaded being allocated mutton duties because it caused him to feel a niggling pain in the right hip which would happen every day and he would rest because of the pain. Clearly, on those descriptions, the applicant regarded the work associated with inspection of mutton at Forbes and Wagga as more onerous for him than were his beef-related duties. In the initial decision, I noted the applicant’s evidence that his duties were more onerous prior to 1993 when he was involved with inspection of mutton as well as beef[5]. However, my finding in the initial decision was that the evidence before me attributed the applicant’s hip condition to heavy lifting rather than the types of movement described by the applicant in respect of his inspection duties. As I understand it, that finding was not called into question by the Full Court. [5] [2011] AATA 662 at paragraph 81.