Walsh and Comcare (Compensation) - [2024] AATA 3616

Walsh and Comcare (Compensation) [2024] AATA 3616 (11 October 2024)

Division:GENERAL DIVISION
File Number(s): 2023/5249
Re:WALSH, Adiran
APPLICANT

AndComcare
RESPONDENT

DECISION

Tribunal:Senior Member A Ward AM
Date:11 October 2024
Place:Adelaide

The decision under review is affirmed.

.........................[sgnd]...............................................

Senior Member A Ward AM

CATCHWORDS:

Safety Rehabilitation Compensation Act - Aids and Appliances - rehabilitation programme – E-scooter – recreational device – remote hearing – the decision under reviewed is affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988

Administrative Appeals Tribunal Act 1975

CASES

WBJM and Comcare [2015] AATA 143

Keane and Telstra Corporation Limited (Compensation) [2016] AATA 76

Chugha and Comcare [2020] AATA 2835

SECONDARY MATERIALS

Administrative Appeals Tribunal / Guideline / Persons Giving Expert and Opinion Evidence (dated 30 June 2015)

REASONS FOR DECISION

Senior Member A Ward AM

11 October 2024

The Applicant, Mr Adrian Walsh, sought a review of the Respondent Comcare’s reviewable decision dated 24 May 2023. This concerned his claim for compensation for his purchasing an E-scooter which he said assisted him with mobility. He had previously suffered an injury to his right leg.
In the reviewable decision on 24 May 2023, the previous determination dated 12 April 2023, which denied the Applicant’s claim for compensation in respect of an E-scooter under section 39 of the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”) was affirmed.
The extent of the claim was generally broadened so that the applicant sought compensation under s 39 of the SRC Act in respect of his acquisition of two E-scooters and a ramp. This was for a Bolzzen Atom Light E-scooter ($799) which the Applicant obtained on or about 27 July 2022 and then a Segway 9bot Max G2 Electric Scooter[1] ($1,699) which he obtained from JB HiFi on or about 8 October 2023. In addition, there was a ramp which he purchased from Bunnings, also on 8 October 2023, for $52. The ramp was used by Mr Walsh to load and unload the Segway Scooter from his motor vehicle.
[1] Elsewhere referred to as a Segway 9Bot Kick Scooter.
The applicant had sustained injuries to his right leg, in particular his right tibia and fibula, on 9 September 1994 in work circumstances. Liability had been accepted under the SRC Act for various conditions arising as a result of that injury. It is of note that it was the leg fracture and then also osteoarthritis in the lumbar spine. In addition, he had osteoarthritic changes in his left knee and patella. He had an altered gait which caused problems with his right hip and he suffered right thigh and calf muscle wasting. In addition, he had symptoms in his left hip. These problems have been accepted in various determinations over the years. There is no dispute that the Applicant had a serious right leg injury which, over time, has led to other problems as a direct consequence.
There is no dispute that the Applicant has problems with mobility which continue to be the case.

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 Walsh and Comcare (Compensation)

Details

AGLC: Walsh and Comcare (Compensation) [2024] AATA 3616
Case: [2024] AATA 3616
Decision Date: 11 October 2024

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Walsh against a decision of the Safety, Rehabilitation and Compensation Commission (SRCC) which affirmed a determination by Comcare to reject Mr. Walsh's claim for compensation. Mr. Walsh sought compensation for a psychological injury allegedly sustained during his employment with the Australian Federal Police. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the SRCC's decision.

The primary legal issue before the Tribunal was whether Mr. Walsh's claimed psychological injury was a 'disease' within the meaning of section 5 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the Act). Specifically, the Tribunal had to determine if the condition alleged by Mr. Walsh was a disease that was contributed to, to the requisite degree, by his employment.

Senior Member A Ward AM considered the evidence presented, including medical reports and Mr. Walsh's own testimony. The Tribunal applied the principles established in cases concerning the definition of 'disease' under the Act, which generally requires a pathological bodily response. The Tribunal found that the symptoms described by Mr. Walsh, while causing him distress and impacting his functioning, did not constitute a recognised pathological condition or disease in the medical sense. Therefore, the Tribunal concluded that Mr. Walsh had not established that he suffered from a 'disease' as defined by the Act, and consequently, his employment could not have contributed to such a disease.

The Tribunal affirmed the SRCC's decision, dismissing Mr. Walsh's appeal.

Orders