Smith and Comcare - [2011] AATA 662

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 662
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2489

GENERAL ADMINISTRATIVE DIVISIO.N )

Re LAWRENCE SMITH

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member
Date28 September 2011
PlaceBrisbane

Decision
The Tribunal affirms the decision under review.

............................................
Senior Member

CATCHWORDS
WORKERS’ COMPENSATION – Employment as meat inspector – Hip osteoarthritis – Timeliness of notice of injury – No prejudice to the respondent by delay - No material contribution by employment - Respondent not liable to pay compensation or provide medical treatment to the applicant for incapacity or impairment – Decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 7, 14, 53, 54
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Comcare v Canute (2005) FCR 232
Comcare v Luck (1999) 29 AAR 403
Comcare v Sahu-Khan (2007) 156 FCR 536
Pacific Manning Company Pty Ltd v Barton (2003) 74 ALD 1
REASONS FOR DECISION

28 September 2011 Mr R G Kenny, 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 (AQIS) 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 (“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.
LEGISLATION AND ISSUES
2. For Mr Smith, Mr John Mrsic submitted that the osteoarthritis of the right hip was a constitutional condition which was aggravated by Mr Smith’s duties as a meat inspector and that his aseptic necrosis-avascular necrosis and his partial sciatic nerve palsy resulted from right hip replacement surgery in 2008. Mr David Richards, for the respondent, agreed with Mr Mrsic that osteoarthritis of the hip was a disease under the Act and that the Tribunal’s focus should be that disease rather than the two consequential conditions. This was on the basis that, if Comcare is liable to pay compensation under the Act for the hip condition, the other matters would be the subject of a subsequent determination by Comcare. Mr Richards submitted that there was no contribution by Mr Smith’s employment to aggravation of his hip osteoarthritis.
3. For the reasons agreed to by Mr Richards and Mr Mrsic, I am satisfied that the only matter before me is whether Comcare is liable to pay compensation for aggravation of Mr Smith’s hip osteoarthritis under s 14 of the Act.
4. An issue for the Tribunal is the timing of the onset of the disease. To that end, s…

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 Smith and Comcare

Details

AGLC: Smith and Comcare [2011] AATA 662
Case: [2011] AATA 662
Decision Date: 28 September 2011

CaseChat Overview and Summary

The applicant, Smith, sought workers' compensation from Comcare, the respondent, for incapacity and impairment resulting from osteoarthritis in his left hip. The dispute was heard by the Administrative Appeals Tribunal (AAT), which upheld the original decision to deny compensation. Smith argued that his employment as a meat inspector contributed to his condition, but Comcare contended that the claim was not timely and that employment did not materially contribute to the condition.

The legal issues before the Tribunal included whether the applicant's notice of injury was timely, if the delay caused any prejudice to Comcare, and whether Smith's employment materially contributed to the osteoarthritis. The Tribunal needed to determine whether these factors, in light of the relevant statutory provisions, warranted compensation.

The Tribunal considered the evidence and found that the applicant's notice of injury was not timely, but the delay did not prejudice Comcare. Furthermore, the Tribunal concluded that Smith's employment did not materially contribute to the osteoarthritis, based on the medical evidence and the applicable statutory criteria. The Tribunal relied on previous cases such as Brisbane South Regional Health Authority v Taylor, Comcare v Canute, Comcare v Luck, and Comcare v Sahu-Khan, which established the necessary legal standards for workers' compensation claims. Given these findings, the Tribunal affirmed the original decision denying compensation.

The Tribunal's decision was consistent with the applicable statutes and case law, and the Tribunal found no grounds to overturn the initial decision. Therefore, the Tribunal affirmed the decision under review, and Comcare was not liable to pay compensation or provide medical treatment to Smith for his incapacity or impairment.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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GENERAL ADMINISTRATIVE DIVISIO.N		)
Re		LAWRENCE SMITH