Winsall and Comcare - [2003] AATA 51

DECISION AND REASONS FOR DECISION [2003] AATA 51

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/1544

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ROHAN WINSALL
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date17 January 2003
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and in substitution decides that Mr Winsall is entitled to compensation in respect of the disc prolapse for which he first sought medical treatment in July 2001.
  (Sgd) Joan Dwyer
  Senior Member
COMPENSATION – disc prolapse – sustained while on leave – whether compensable "injury" – heavy work as a boilermaker – earlier compensable back injury – evidence that prolapse would not occur without pre-existing defect – some back pain at work shortly prior to prolapse – agreement of medical witnesses that heavy work causes damage to annulus of disc and makes it vulnerable to prolapse – whether prolapse is a "disease" within definition of injury in s 4(1) of Act – whether relevant that prolapse was not an "inevitable" part of the disease process – decision under review set aside – prolapse is an "injury"
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1),
Compensation (Commonwealth Government Employees) Act 1971 s 29(3)

Australian Postal Corporation v Burch (1998) 156 ALR 483

Kavanagh v The Commonwealth (1960) 103 CLR 547

Re Williams and Australian and Overseas Telecommunications Corporation (1993) 17 AAR 308

Health Insurance Commission v Van Reesch and Another (1996) 45 ALD 302

Accident Compensation v McIntosh [1991] 2 VR 253

Comcare v Laidlaw [1999] FCA 40

REASONS FOR DECISION

17 January 2003 Mrs Joan Dwyer, Senior Member

This is an application for review of a reviewable decision made under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). That decision affirmed a determination made 25 July 2001 which decided that Comcare was not liable to pay compensation to Mr Winsall in respect of "disc prolapse", for which Mr Winsall first sought medical treatment on 2 July 2001.
Mr Perry of Counsel appeared for Mr Winsall. Mr Ferwerda of Counsel appeared for Comcare. Mr Winsall gave evidence. Evidence on his behalf was also given by four boilermakers who had worked with him at Australian Defence Industries ("ADI"), Mr Leckie, Mr Milikans, Mr Cooney and Mr Mullins. In addition evidence on behalf of Mr Winsall was given by Dr Sexton, a chiropractor, by Dr Van Der Spek and Dr Snow, treating general practitioners, by Mr McCullough, the treating orthopaedic surgeon, and by Mr Phillips, a general surgeon. The respondent called Mr MacAgue who is Mr Winsall's supervisor at ADI and also Mr Shannon, an orthopaedic surgeon. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
BACKGROUND
Mr Winsall, who was aged 35 at the date of hearing, started working for ADI as a boilermaker in 1994.
On 30 November 1999 Mr Winsall reported (T4 p15) that he had…

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 Winsall and Comcare

Details

AGLC: Winsall and Comcare [2003] AATA 51
Case: [2003] AATA 51
Decision Date: 17 January 2003

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was an appeal by Mr Winsall against a decision of Comcare. Mr Winsall claimed that he suffered an injury at work which aggravated a pre-existing condition and that he was entitled to compensation. Comcare argued that Mr Winsall’s condition was not caused or aggravated by his work and therefore, he was not entitled to compensation. The legal issues in the case were whether Mr Winsall’s condition was caused or aggravated by his work, and if so, whether he was entitled to compensation. The Tribunal considered evidence from Mr Winsall, several of his colleagues, medical professionals, and Comcare's witnesses. The Tribunal found that Mr Winsall’s condition was caused by his work and that Comcare was liable for compensation. The Tribunal determined that Mr Winsall’s lifting and manoeuvring of heavy steel parts at work contributed to his injury, which was a compensable event. The Tribunal also found that Mr Winsall’s subsequent injury, which he sustained during a family funeral, was not a separate compensable event but rather an aggravation of his pre-existing condition caused by his work. The Tribunal concluded that Comcare was liable for compensation for Mr Winsall’s injury and awarded him compensation accordingly.

In reaching its decision, the Tribunal considered the evidence presented by both parties and the applicable legal principles. The Tribunal found that Mr Winsall’s evidence was credible and consistent, and that the medical evidence supported his claim that his condition was caused by his work. The Tribunal also found that Comcare’s arguments were not supported by the evidence and that their defence was not convincing. The Tribunal emphasised the importance of the evidence in determining the liability for compensation and the amount of compensation to be awarded. The Tribunal also noted that the onus of proof was on Comcare to establish that Mr Winsall’s condition was not caused or aggravated by his work, and that Comcare had failed to discharge this burden of proof. The Tribunal’s decision was based on a careful consideration of the evidence and the applicable legal principles, and it provides useful guidance for similar cases in the future.

Orders

Orders of the court

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Background

Background to the litigation

Mr Perry of Counsel appeared for Mr Winsall. Mr Ferwerda of Counsel appeared for Comcare. Mr Winsall gave evidence. Evidence on his behalf was also given by four boilermakers who had worked with him at Australian Defence Industries ("ADI"), Mr Leckie, Mr Milikans, Mr Cooney and Mr Mullins. In addition evidence on behalf of Mr Winsall was given by Dr Sexton, a chiropractor, by Dr Van Der Spek and Dr Snow, treating general practitioners, by Mr McCullough, the treating orthopaedic surgeon, and by Mr Phillips, a general surgeon. The respondent called Mr MacAgue who is Mr Winsall's supervisor at ADI and also Mr Shannon, an orthopaedic surgeon. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.BACKGROUND Mr Winsall, who was aged 35 at the date of hearing, started working for ADI as a boilermaker in 1994. On 30 November 1999 Mr Winsall reported (T4 p15) that he had suffered a lumbosacral sprain on 24 November 1999, causing him to feel pain in the lower back right side when cooling down after work. At the time Mr Winsall was building roof panels for ships' engine rooms, which was his usual job. He was required to lift heavy steel parts out of a rack or to manoeuvre them on to and off fork lifts. Mr Winsall said that it was his belief that he had injured his back lifting heavy parts out of the racks. Mr Winsall had a day off work when he saw Dr Sexton, a chiropractor, but went back to work on two weeks of light duties the following day. After those two weeks on light duties he saw the chiropractor once again and then returned to his full duties. The incident was accepted as compensable. From November 1999 to June 2001 Mr Winsall had no time off work because of his back, nor did he seek any medical treatment or take pain killers because of his back. Mr Winsall finished work on Wednesday 27 June 2001 and started recreation leave on Thursday 28 June 2001 (T6 p17). On that day he drove to Charlton for a family funeral. He said he found it difficult to sit in church and kept shifting around in an attempt to find a more comfortable position. He drove back to Bendigo after the funeral. The following day he took things easy. The main task he did was wash his car getting ready to sell it. He said he only worked on the outside of the car, which was something he had done many, many times, during the six or seven years he had owned the car. The next day, when he woke up, he had pain in his left buttock and from the buttock to the calf down the left leg. He got out of bed and found it difficult to walk because he was sore down the left hamstring. He could not straighten his leg properly and more or less had to drag it when walking. Because it was a Saturday he could not see Dr Sexton that day. He put up with the pain on Sunday and saw Dr Sexton on Monday 2 July 2001. Dr Sexton told him to go home and see how it was by Wednesday, but the pain became significantly worse over the Monday. On Tuesday 3 July, Mr Winsall rang Dr Sexton who suggested that if it was so bad he should get some pain killers. Mr Winsall tried to get into the car to drive to the pharmacist but the pain was such that he could not sit in the car.

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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