Tucker and Comcare (Compensation) - [2019] AATA 1136

Tucker and Comcare (Compensation) [2019] AATA 1136 (6 June 2019)
Division:GENERAL DIVISION
File Numbers: 2016/6561 and 2016/6596
Re:Edward Tucker
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member Richard West
Date:6 June 2019
Place:Melbourne
1.In Application No. 2016/6561 the Tribunal affirms the decision of the delegated review officer of the Respondent dated 4 October 2016 to affirm the determination of the review officer dated 10 May 2016 to deny liability to pay compensation for permanent impairment and non-economic loss under sections 24 and 27 of the SRC Act.
2.In Application 2016/6596, the Tribunal affirms the decision of the delegated review officer of the Respondent dated 4 October 2106 to affirm the determination of the review officer dated 1 August 2016 that on and from 1 August 2016 the Applicant had no current entitlement to compensation under sections 16, 29 and 134 of the SRC Act in respect of the Applicant’s ‘sprained dorsal back and cervical muscles’.

.........[sgd]................................
Member Richard West
Catchwords
Compensation – back and neck pain – liability to pay compensation for permanent impairment and non-economic loss - sprained dorsal back and cervical muscles - no current entitlement to compensation - decision affirmed
Legislation
Compensation (Commonwealth Government Employees) Act 1971
Safety Rehabilitation and Compensation Act 1988
Cases
Blackman v Australian Telecommunications Corporation [1990] FCA 295
Comcare Australia (Department of Defence) v Maida [2002] FCA 1284
Commissioner for Safety Rehabilitation and Compensation of Commonwealth Employees v Brennan (1993) 45 FCR 475
Brennan v Comcare [1994] FCA 1147
Department of Defence v West (1998) 156 ALR 651
Australian Postal Corporation v Bessey [2001] FCA 266
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR(NSW) 157
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1
REASONS FOR DECISION
Member Richard West
6 June 2019
Background
1.The Applicant was born in 1937. He is a former civilian employee of the Department of Defence (DoD).
2.He commenced employment with the DoD on or about 26 October 1979 as a painter, performing painting and maintenance duties at the H.M.A. Naval Dockyard at Williamstown in Victoria.
3.On 30 October 1979 the Applicant suffered pain in his upper back and neck when he turned while passing a heavy toolbox to a colleague while standing on a ladder (the 1979 Incident).
4.On 16 April 1980 the Applicant sustained a ‘sprained dorsal back and cervical muscles’ injury when he slipped and fell descending stairs on HMAS Cook (the 1980 Incident).
5.On 21 May 1980 the Applicant’s claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) in relation to the injury sustained in the 1980 Incident was accepted.
6.On 27 June 1980 the Applicant resigned his employment with DoD.
7.From 28 June 1980 to 1 April 1982 the Applicant worked for the Liquor Trades Union assisting with member services and completing clerical work. For a brief time from 1 to 9 July 1982, he worked as a casual employee…

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 Tucker and Comcare (Compensation)

Details

AGLC: Tucker and Comcare (Compensation) [2019] AATA 1136
Case: [2019] AATA 1136
Decision Date: 6 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the appeal of Mr. Tucker against a decision by Comcare. Mr. Tucker sought compensation for permanent impairment and non-economic loss arising from a sprained dorsal back and cervical muscles. Comcare had determined that Mr. Tucker did not have a current entitlement to compensation for these conditions.

The primary legal issue before the Tribunal was whether Mr. Tucker had established a current entitlement to compensation for permanent impairment and non-economic loss in relation to his back and neck injuries. This required the Tribunal to assess the evidence presented regarding the nature and extent of his injuries and any ongoing effects.

The Tribunal affirmed Comcare's decision, finding that Mr. Tucker had not demonstrated a current entitlement to compensation. The reasoning focused on the lack of sufficient evidence to establish that the claimed permanent impairment or non-economic loss was ongoing or directly attributable to the accepted injury. The Tribunal applied the relevant legislative provisions concerning permanent impairment and non-economic loss under the *Safety, Rehabilitation and Compensation Act 1988* (Cth), concluding that the threshold for such compensation had not been met.

Orders