Smith and Comcare - [2004] AATA 932

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 932
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/185

GENERAL ADMINISTRATIVE DIVISION )

Re STEPHEN SMITH

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date6 September 2004
PlaceCanberra

Decision The decision under review is affirmed.
..............................................
Mr S. Webb, Member

CATCHWORDS
COMPENSATION - injury - liability accepted - decision to cease liability for the accepted condition set aside by decision of the Tribunal - rehabilitation assessment - claim for retrospective payment of tuition fees - rehabilitation determination - tertiary studies not rehabilitation - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss. 4, 14, 19, 36, 37, 67
Re Smith and Comcare [2002] AATA 249
Comcare v Chang (1996) 24 AAR 120
Slater v Telstra Corporation Limited (2001) 115 FCR 34
Peterson v Telstra Corporation Limited [1996] FCA 399 (28 May 1996; Olney J)
Lees v Comcare (1999) 29 AAR 350
Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1
Re Fox and Department of Defence (1995) 40 ALD 614
Department of Defence v Fox (1997) 24 AAR 171
Re Haslehurst and Comcare (1998) AATA 13105
REASONS FOR DECISION

August 2004 Mr S. Webb, Member

1.      By this application Mr Smith is seeking review of a Comcare decision to affirm a primary determination that he should undertake a rehabilitation program that did not include tertiary studies he had previously commenced.
2.      The matter came on for hearing in Canberra on 13 August 2004. Mr Smith was represented by Mr R. Crowe, senior counsel, and Comcare was represented by Mr A. Reilly, solicitor. Mr Smith gave oral evidence as did Ms E. Haswell and Dr G. Eaton. Materials were tendered and labelled as exhibits.
factual context
3.      The following material facts arise from the evidence and are not in dispute.
4. Mr Smith (date of birth: 25 October 1966) completed Year 10 studies in the Australian Capital Territory (“ACT”). He then worked as a labourer for a period of years. In 1986 he was employed by the Royal Australian Air Force (“RAAF”) in the Airfield Defence Guard. He remained in that employment for approximately three and a half years. On leaving the RAAF he commenced a private investigation security business which he operated for five or six years. Thereafter he was employed as a security guard in a club and as a temporary janitor by the ACT Department of Education and Community Services. In or about October 1997 Mr Smith obtained full time casual employment as a Custodial Officer Level 3 with ACT Corrective Services in the Department of Justice and Community Safety. He underwent training and worked in the Adult Corrections Court Transport unit. He was injured in that employment on 20 April 1998.
5. In or about June 1998 Mr Smith commenced employment with the ACT Department of Education and Community Services (“the Department”) as a Youth Worker at the Quamby Youth Detention Centre (“Quamby”). On…

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 [2004] AATA 932
Case: [2004] AATA 932
Decision Date: 6 September 2004

CaseChat Overview and Summary

In the case of Re Smith and Comcare, the applicant sought compensation for injuries sustained during his employment. The dispute centred around the decision by Comcare to cease liability for a previously accepted condition, and the subsequent rehabilitation assessment which deemed tertiary studies not to be rehabilitation. The matter was heard by the Administrative Appeals Tribunal. The applicant, Mr Smith, argued that the cessation of liability for the accepted condition was unlawful and sought retrospective payment of tuition fees as part of his rehabilitation. Comcare, represented by the Commonwealth, maintained that the decision to cease liability was valid and that the tertiary studies did not constitute rehabilitation under the Safety, Rehabilitation and Compensation Act 1988.

The Tribunal was required to determine whether the decision to cease liability for the accepted condition was valid and whether the tertiary studies were appropriately classified as rehabilitation. Additionally, the Tribunal had to consider whether the decision regarding the classification of the tertiary studies as non-rehabilitative was correct, and if the applicant was entitled to retrospective payment of tuition fees. These issues required an interpretation of the relevant provisions of the Act and the case law that had developed around it.

The Tribunal found that the decision to cease liability for the accepted condition was flawed and set it aside. The Tribunal examined the evidence and concluded that the cessation was not justified under the relevant provisions of the Act. However, the Tribunal upheld the decision that tertiary studies were not rehabilitation, as they did not directly address the functional capacity of the applicant in relation to their employment. The Tribunal held that the classification of the studies was correct and that they did not meet the criteria for rehabilitation under the Act. Consequently, the claim for retrospective payment of tuition fees was dismissed. The decision of the Tribunal was affirmed, and the applicant's appeal was dismissed.

Orders

Orders of the court

The decision under review is affirmed.

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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