FEDERAL COURT OF AUSTRALIA
Szabo v Comcare [2012] FCA 28
Citation: Szabo v Comcare [2012] FCA 28 Appeal from: Szabo v Comcare [2011] AATA 114 Parties: LAZLO SZABO v COMCARE File number: NSD 323 of 2011 Judge: STONE J Date of judgment: 30 January 2012 Catchwords: ADMINISTRATIVE LAW – s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – appeal from decision of Administrative Appeals Tribunal that applicant not entitled to compensation under ss 16 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) from 13 June 2008 for a lower back injury sustained on 20 June 1989 – characterisation of applicant’s claim for compensation – whether Tribunal erred in law in finding that claim was not a “nature and conditions” claim – whether Tribunal erred in law in determining that it had no jurisdiction to consider a nature and conditions claim – whether applicant had been denied procedural fairness – principles applicable to construction of compensation claims – Tribunal entitled to make findings of fact – no error of law – appeal dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 29Cases cited: Abrahams v Comcare (2006) 93 ALD 147
Australian Postal Corporation v Sellick (2008) 245 ALR 561
Durham v TNT Australia Pty Ltd [2011] AATA 802
Sellick v Australian Postal Corporation (2009) 113 ALD 58Date of hearing: 5 September 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: LT Grey Solicitor for the Applicant: Rishworth Dodd & Co Counsel for the Respondent: D Richards Solicitor for the Respondent: DibbsBarker
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 323 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: LAZLO SZABO
ApplicantAND: COMCARE
Respondent
JUDGE:
STONE J
DATE OF ORDER:
30 JANUARY 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 323 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: LAZLO SZABO
ApplicantAND: COMCARE
Respondent
JUDGE:
STONE J
DATE:
30 JANUARY 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal. On 22 February 2011 the Tribunal affirmed the respondent’s decision that, as from 13 June 2008, the applicant was not entitled to compensation under ss 16 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) as he no longer suffered from the “aggravation of pre-existing lower back degenerative disease” resulting from an injury that occurred on 20 June 1989.
BACKGROUND
Between 17 December 1979 and 30 September 1988 the applicant, Lazlo Szabo, was employed as a meat inspector with the Victorian Department…
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- Szabo v Comcare [2012] FCA 28
- Case
- [2012] FCA 28
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CaseChat Overview and Summary
In the case of Szabo v Comcare, the applicant, Mr Szabo, appealed against a decision of the Administrative Appeals Tribunal (AAT) that found him not entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) from 13 June 2008 for a lower back injury sustained on 20 June 1989. The primary issue was whether the Tribunal erred in law by finding that Mr Szabo’s claim was not a “nature and conditions” claim, and whether it had correctly determined it lacked jurisdiction to consider such a claim. Additionally, Mr Szabo argued that he had been denied procedural fairness.
The Tribunal had concluded that the 1989 injury was an aggravation of the 1985 injury, but Mr Szabo no longer suffered from the effects of the 1989 injury. It found that the current back pain was a result of the 1985 injury, for which he had been compensated by the State of Victoria. The Tribunal determined that Mr Szabo was no longer entitled to compensation for medical expenses and household assistance under the SRC Act. The court needed to decide whether the Tribunal had correctly characterised the claim, assessed the jurisdictional issues, and whether procedural fairness had been upheld.
The Federal Court found that the Tribunal was entitled to make findings of fact and did not err in law. The characterisation of the claim as not being a “nature and conditions” claim was upheld because it was based on the actual claim made by Mr Szabo and the initial determination by Comcare. The court held that the Tribunal had correctly exercised its jurisdiction and that procedural fairness had been observed. The appeal was dismissed with costs.
ORDERS:
1. The application be dismissed with costs.
The Tribunal had concluded that the 1989 injury was an aggravation of the 1985 injury, but Mr Szabo no longer suffered from the effects of the 1989 injury. It found that the current back pain was a result of the 1985 injury, for which he had been compensated by the State of Victoria. The Tribunal determined that Mr Szabo was no longer entitled to compensation for medical expenses and household assistance under the SRC Act. The court needed to decide whether the Tribunal had correctly characterised the claim, assessed the jurisdictional issues, and whether procedural fairness had been upheld.
The Federal Court found that the Tribunal was entitled to make findings of fact and did not err in law. The characterisation of the claim as not being a “nature and conditions” claim was upheld because it was based on the actual claim made by Mr Szabo and the initial determination by Comcare. The court held that the Tribunal had correctly exercised its jurisdiction and that procedural fairness had been observed. The appeal was dismissed with costs.
ORDERS:
1. The application be dismissed with costs.
Orders
Orders of the court
1. The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The determination of 13 June 2008 was affirmed on reconsideration. The applicant then applied to the Tribunal for review of that determination. TRIBUNAL DECISION The Tribunal concluded that the 1989 injury was an aggravation of the 1985 injury, however the applicant no longer suffers from the effects of the 1989 injury. On the basis of the medical evidence presented, the Tribunal accepted that any back pain from which the applicant presently suffers is a result of his 1985 injury for which he had been compensated by the State of Victoria. Accordingly, the Tribunal determined that Mr Szabo was no longer entitled to medical expenses and household assistance pursuant to the SRC Act. At the hearing before the Tribunal on 21 and 22 October 2010 the applicant was represented by counsel. The questions to be addressed by the Tribunal were summarised as follows: Whether on 13 June 2008, the applicant continues to suffer from the effects of his aggravation of pre-existing lower back degenerative disease injury sustained on 20 June 1989;Whether as at 13 June 2008 the applicant is entitled to compensation for medical expenses pursuant to section 16 of the SRC Act, and compensation for household services pursuant to section 29 of the SRC Act, which are reasonably required as a result of the incident of 20 June 1989. The Tribunal added that it was also necessary to consider a number of preliminary issues, namely: whether the applicant’s claim could be considered to be a ‘nature and conditions claim’; whether the settlement of the claim in relation to the 1985 injury encompasses “all injuries or aggravations from 1985 to the date of settlement” in 1992; and the applicant’s back condition between 3 October 1988 (the date on which he had been cleared as fit for fulltime work) and the date of the 1989 injury. The first issue for the Tribunal was whether the applicant’s claim could be considered to be a ‘nature and conditions claim’, that is whether it related to the injury suffered to the nature and conditions of his employment as experienced in the normal course of his employment over a period of time, rather than to a single incident. In support of this characterisation the applicant pointed to the numerous accident reports that he had submitted between October 1988 and March 1990 when he was working for AQIS. In one way or other these reports all referred to his work as involving constant lifting, bending and twisting. The accident report submitted by the applicant in respect of the 1989 injury also described what he was doing at the time in similar terms. It said:Constant lifting & bending whilst carrying out inspection duties on mutton chain (lifting front legs to inspect under necks). The Tribunal was presented with a considerable volume of medical evidence dating from the time of the 1985 injury to the present. The medical practitioners’ opinions ranged from those who attributed the applicant’s medical condition to his employment and the nature and conditions of his work as a meat inspector (eg Dr Evans) to those who were more inclined to attribute it to pre-existing degeneration (eg Dr Ashwell). Ultimately the Tribunal considered that the issue was not one of medical opinion (which was noted for completeness only) but depended on what was actually claimed by the applicant and was the subject of Comcare’s initial determination of 13 June 2008, as affirmed on 7 January 2009.
Ratio Decidendi
Legal Principle Established
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