Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 719
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1854
GENERAL ADMINISTRATION DIVISION ) Re IVY TRAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date22 September 2010
PlaceAdelaide
Decision The tribunal sets aside the decision under review, and
(a) in substitution for that decision, decides that the respondent is liable to pay compensation for aggravation of the applicant’s pre-existing degenerated cervical spine;
(b) remits the matter to the respondent for reconsideration in accordance with these reasons;
(c) reserves liberty to apply within fourteen days in relation to the costs of the proceedings; and
(d) orders that in the absence of any such application the respondent pay the costs of the proceedings.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – liability accepted for aggravation of degeneration of cervical intervertebral disc – subsequent determination that applicant no longer entitled to compensation – held that continuing aggravation did not require separate claims for compensation – held that AAT can consider psychological factors exacerbating pain notwithstanding absence of claim or prior determination by Comcare re psychological injury – evidentiary onus of adducing evidence – relevance of events subsequent to date of reviewable decision – held that sufficient evidence had been adduced to warrant cancelling entitlement to compensation – held that Comcare liable for aggravation of pre-existing degenerated spine causing increased pain.
PRACTICE AND PROCEDURE – Jurisdiction – Compensation – Commonwealth employee – liability accepted for aggravation of degeneration of cervical intervertebral disc – subsequent determination that applicant no longer entitled to compensation – evidence of different injury, namely aggravation of pre-existing degenerated spine causing increased pain – held that continuing aggravation did not require separate claims for compensation – held that AAT can consider psychological factors exacerbating pain notwithstanding absence of claim or prior determination by Comcare re psychological injury – evidentiary onus of adducing evidence – relevance of events subsequent to date of reviewable decision.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss4(1) and 14
Abrahams v Comcare (2006) 93 ALD 147
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Brackenreg v Comcare [2010] FCA 724
Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426
Comcare v Nichols [1999] FCA 209
Comcare v Canute (2005) 148 FCR 232
Comcare v O’Dea (1997) 26 AAR 252
Comcare v Sahu-Khan (2007) 156 FCR 536
Commonwealth v Beattie (1981) 53 FLR 191
Commonwealth v Muratore (1978) 141 CLR 296
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Holt v Comcare (2003) 130 FCR 576
Lees v Comcare (1999) 56 ALD 84
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Cavanagh and Comcare (2008) 106 ALD 143
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- AGLC
- Tran and Comcare [2010] AATA 719
- Case
- [2010] AATA 719
- Decision Date
CaseChat Overview and Summary
The primary legal issues in this case were whether the continuing aggravation of Mr. Tran's condition required separate claims for compensation, the ability of the AAT to consider psychological factors exacerbating pain without a prior claim or determination by Comcare regarding a psychological injury, the evidentiary onus of adducing evidence, and the relevance of events subsequent to the date of the reviewable decision. Furthermore, the court had to determine if sufficient evidence had been adduced to warrant cancelling Mr. Tran's entitlement to compensation, and whether Comcare was liable for the aggravation of his pre-existing degenerative spine causing increased pain.
The court found that continuing aggravation did not require separate claims for compensation and that the AAT could consider psychological factors exacerbating pain, even in the absence of a claim or prior determination by Comcare regarding a psychological injury. The court held that the evidentiary onus of adducing evidence was on Mr. Tran, and events subsequent to the date of the reviewable decision were relevant. The court determined that sufficient evidence had been adduced to warrant cancelling Mr. Tran's entitlement to compensation and that Comcare was liable for the aggravation of his pre-existing degenerative spine causing increased pain.
The tribunal set aside the decision under review and decided that the respondent, Comcare, was liable to pay compensation for aggravation of the applicant's pre-existing degenerated cervical spine. The matter was remitted to Comcare for reconsideration in accordance with the reasons of the tribunal. The tribunal also reserved liberty to apply within fourteen days in relation to the costs of the proceedings, and ordered that in the absence of any such application, Comcare would pay the costs of the proceedings.
Orders
Orders of the court
The tribunal sets aside the decision under review, and
(a) in substitution for that decision, decides that the respondent is liable to pay compensation for aggravation of the applicant’s pre-existing degenerated cervical spine;
(b) remits the matter to the respondent for reconsideration in accordance with these reasons;
(c) reserves liberty to apply within fourteen days in relation to the costs of the proceedings; and
(d) orders that in the absence of any such application the respondent pay the costs of the proceedings.
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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