Wissing and Comcare (Compensation) - [2018] AATA 768

Wissing and Comcare (Compensation) [2018] AATA 768 (9 April 2018)
Division:GENERAL DIVISION
File Number(s): 2016/5655, 2017/3694
Re:Lester Wissing
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Egon Fice, Senior Member
Miss E A Shanahan, Member

Date:9 April 2018
Place:Melbourne

The Tribunal affirms the decisions under review.
..........................[sgd]..............................................
Egon Fice, Senior Member
WORKERS COMPENSATION – 1976 workplace accident – low back pain – settlement reached in 1990 – application of the Compensation (Commonwealth Government Employees) Act 1971 – transition provisions of the Safety, Rehabilitation and Compensation Act 1988 – aggravation or exacerbation of injury – psychological injury
Legislation
Compensation (Australian Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988
Cases
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Department of Defence v West (1998) 85 FCR 491
REASONS FOR DECISION
Egon Fice, Senior Member
Miss E A Shanahan, Member
9 April 2018

On 12 October 1976, when Mr Lester Wissing was employed as a technical assistant by the Commonwealth Scientific and Industrial Research Organisation (CSIRO), he sustained what he described as a strained back injury. He lodged a Notification of Injury with his employer on 28 October 1976. Mr Wissing also lodged a claim for compensation under the then Compensation (Australian Government Employees) Act 1971 (the 1971 Act) in respect of his strained back. In a determination made on 18 January 1977 by a Delegate of the Commissioner for Employees Compensation, his claim in respect of strained coccygeal ligaments was accepted and he received compensation for medical treatment expenses.
Despite treatment, Mr Wissing continued to experience pain in the lumbosacral area. An X-ray taken on 6 September 1977 at the Geelong Radio Diagnostic Clinic, which was read by Dr HW Hardy, disclosed that his anatomy was normal and no spondylosis or spondylolisthesis was seen. The bone and joint appearances were normal at all levels of the lumbosacral spine and the sacroiliac joint regions. No disc space narrowing was seen.
In an Occupational Injury, Illness or Incident Report completed by Mr Wissing on 25 May 1988 Mr Wissing said:
On 12/10/1976 I hurt my low back when lifting a bin of sludge. My continued employment aggravated my low back injury + I ceased work due to this and my anxiety state on 9/12/1981. I have not worked since then as a result of the combined effect of my low back pain + anxiety.
That report appears to have followed a letter sent to Mr Wissing dated 6 May 1988 from a Delegate of the Commissioner for Employees’ Compensation advising him that it was proposed to determine that the CSIRO was no longer liable to pay compensation. Mr Wissing was given 21 days in which to obtain and submit evidence showing why liability should not be terminated.
After providing Mr Wissing with a number of extensions totalling some three months and receiving further medical reports, the Delegate determined that liability should be terminated. The Delegate noted that between 1976 and his retirement on invalidity grounds in 1982, Mr Wissing was…

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 Wissing and Comcare (Compensation)

Details

AGLC: Wissing and Comcare (Compensation) [2018] AATA 768
Case: [2018] AATA 768
Decision Date: 9 April 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Wissing against decisions made by Comcare. Mr Wissing sought compensation for both physical and psychological injuries, as well as permanent impairment and non-economic loss, which he alleged arose from a work incident in 1976. The Administrative Appeals Tribunal (AAT) was required to determine whether these claimed injuries and impairments were causally connected to his employment with CSIRO in 1976.

The Tribunal was tasked with determining whether Mr Wissing's claimed physical and psychological injuries, as assessed on 24 March 2016, arose out of the 1976 accident. Furthermore, the Tribunal had to consider whether Mr Wissing suffered any permanent impairment as a consequence of that 1976 injury, and consequently, whether he was entitled to compensation for non-economic loss.

The Tribunal found that the evidence overwhelmingly indicated that Mr Wissing's psychological injuries were not related to the 1976 work incident. Applying the principles of causation, the Tribunal concluded that neither the claimed physical nor psychological injuries, nor the claimed permanent impairment, arose out of or in the course of his employment with CSIRO as a consequence of the 1976 injury. Accordingly, the Tribunal affirmed Comcare's decisions to deny compensation for medical treatment, permanent impairment, and non-economic loss.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In our opinion, the evidence overwhelmingly points to a finding that Mr Wissing’s psychological injuries are not related to the 1976 work incident. Therefore, we must reject his claim for permanent impairment on psychological grounds.CONCLUSION We have found Comcare’s determination that it was not liable to pay compensation to Mr Wissing for medical treatment pursuant to s. 16 of the SRC Act was the correct decision. That is because neither Mr Wissing’s claimed physical nor psychological injuries as at 24 March 2016 arose out of the accident on 12 October 1976 when employed by the CSIRO. Accordingly, we find that the decision made by a Review Officer with Comcare on 25 May 2017 was the correct decision. We affirm that decision. We have also found that Mr Wissing does not have a permanent impairment which arose out of or in the course of his employment with CSIRO as a consequence of his 1976 injury. Therefore, we affirm the decision made by Comcare on 10 April 2017 denying Mr Wissing compensation for permanent impairment under s. 24 of the SRC Act. As a consequence of that decision, Mr Wissing’s claim for non-economic loss on s. 17 of the SRC Act necessarily fails.

Ratio Decidendi

Legal Principle Established

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