SMITH and COMCARE

[2013] AATA 796

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Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2013] AATA 796

ADMINISTRATIVE APPEALS TRIBUNAL     )

)          No 2010/2489

GENERAL ADMINISTRATIVE DIVISION		)
Re		LAWRENCE SMITH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date30 October 2013

PlaceBrisbane

Decision This matter is to proceed in a hearing on the papers without the admission of further evidence.

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

Senior Member

Background

1. Lawrence Smith claimed workers’ 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 as a meat inspector with the Australian Quarantine and Inspection Service and its predecessors. Mr Smith contended that these injuries resulted from the “nature and conditions of employment over some 30 years” and were “first noticed early 2007”. On 10 December 2009, Comcare determined that there was no liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for conditions diagnosed as “osteoarthritis-pelvis”, “aseptic necrosis (avascular necrosis)” and “injury to other & unspecified nerves-partial sciatic nerve palsy”. That determination was affirmed in a reviewable decision on 6 May 2010.

2.          The Administrative Appeals Tribunal (“the AAT”) affirmed that decision on
28 September 2011. Mr Smith’s appeal to the Federal Court was dismissed on 18 May 2012. On 28 June 2013, the Full Federal Court upheld the further appeal (per Buchanan J, Greenwood J agreeing; Bromberg J dissenting). Buchanan J concluded:

CONCLUSION

40. In those circumstances, in my view, the question of law does not lack relevance. Furthermore, I am not satisfied that there need not be further attention to the question of whether the provisions of s 14 were satisfied, having regard to the employment of the appellant from 1983 to 2008. It would be a matter for the AAT to determine, but I cannot see why further evidence would be necessary or appropriate.

41. I would uphold the appeal and remit the matter to the AAT for further consideration and determination according to law. The appellant should have his costs of the present appeal.

3.          For that further consideration and determination, the AAT is constituted by the senior member who made the initial decision.

4.          In a directions hearing by telephone (“tdh”) on 30 October 2013, Mr John Mrsic of counsel represented Mr Smith; Mr David Richards of counsel represented the respondent. Both Mr Mrsic and Mr Richards appeared in the initial AAT proceedings. At issue was whether, in the hearing, further evidence could be tendered on behalf of Mr Smith.

Mr Mrsic

5.          Mr Mrsic submitted that the terms on which this matter was remitted were such that the AAT was able to consider further evidence. He submitted that further evidence should be admitted and that this included evidence from Mr Smith and from medical practitioners.

6.          In the initial proceedings, Mr Mrsic had intended to rely upon the evidence of rheumatologist, Professor Neil Sambrook, who provided three reports prepared in 2010. However, for health reasons,…