SMITH and COMCARE

[2013] AATA 796

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Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2013] AATA 796

ADMINISTRATIVE APPEALS TRIBUNAL     )

)          No 2010/2489

GENERAL ADMINISTRATIVE DIVISION		)
Re		LAWRENCE SMITH

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date30 October 2013

PlaceBrisbane

Decision This matter is to proceed in a hearing on the papers without the admission of further evidence.

.............[Sgd]...........................

Senior Member

Background

1. Lawrence Smith claimed workers’ compensation in relation to “right hip” and “nerve injury affecting right foot (occurred during hip replacement surgery)”. He alleged that this was related to his employment as a meat inspector with the Australian Quarantine and Inspection Service and its predecessors. Mr Smith contended that these injuries resulted from the “nature and conditions of employment over some 30 years” and were “first noticed early 2007”. On 10 December 2009, Comcare determined that there was no liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for conditions diagnosed as “osteoarthritis-pelvis”, “aseptic necrosis (avascular necrosis)” and “injury to other & unspecified nerves-partial sciatic nerve palsy”. That determination was affirmed in a reviewable decision on 6 May 2010.

2.          The Administrative Appeals Tribunal (“the AAT”) affirmed that decision on
28 September 2011. Mr Smith’s appeal to the Federal Court was dismissed on 18 May 2012. On 28 June 2013, the Full Federal Court upheld the further appeal (per Buchanan J, Greenwood J agreeing; Bromberg J dissenting). Buchanan J concluded:

CONCLUSION

40. In those circumstances, in my view, the question of law does not lack relevance. Furthermore, I am not satisfied that there need not be further attention to the question of whether the provisions of s 14 were satisfied, having regard to the employment of the appellant from 1983 to 2008. It would be a matter for the AAT to determine, but I cannot see why further evidence would be necessary or appropriate.

41. I would uphold the appeal and remit the matter to the AAT for further consideration and determination according to law. The appellant should have his costs of the present appeal.

3.          For that further consideration and determination, the AAT is constituted by the senior member who made the initial decision.

4.          In a directions hearing by telephone (“tdh”) on 30 October 2013, Mr John Mrsic of counsel represented Mr Smith; Mr David Richards of counsel represented the respondent. Both Mr Mrsic and Mr Richards appeared in the initial AAT proceedings. At issue was whether, in the hearing, further evidence could be tendered on behalf of Mr Smith.

Mr Mrsic

5.          Mr Mrsic submitted that the terms on which this matter was remitted were such that the AAT was able to consider further evidence. He submitted that further evidence should be admitted and that this included evidence from Mr Smith and from medical practitioners.

6.          In the initial proceedings, Mr Mrsic had intended to rely upon the evidence of rheumatologist, Professor Neil Sambrook, who provided three reports prepared in 2010. However, for health reasons, Professor Sambrook had been unavailable to give oral evidence at the hearing. Mr Mrsic relied upon rheumatologist, Dr Christopher Browne, to give evidence on behalf of Mr Smith. In the tdh, Mr Mrsic noted that the respondent had relied on the evidence of orthopaedic surgeon, Dr Warwick Huntsdale, and advised that his instructing solicitors were in disputation with Dr Huntsdale in another matter and submitted that it was not appropriate for him to be called to give further evidence. Further, Mr Mrsic advised that Professor Sambrook was now deceased. In those circumstances, Mr Mrsic submitted, it was appropriate to call further evidence and, for that reason, he was seeking to tender a medical report, dated 19 September 2013, from orthopaedic surgeon, Dr James Bodel.

7.          Mr Mrsic also submitted that Mr Smith’s claim was to be “recast” at the rehearing so that the matter of causation of his claimed condition was limited to aspects of his employment from 1983 until 1993, rather than to his entire employment as a meat inspector until 2008. He contended that, in the initial AAT proceedings, Mr Smith had not been cross-examined in relation to the early years of his employment and submitted that an opportunity for this to occur should be afforded to him, in particular, so that his responses could be put to Dr Bodel for comment. He submitted that the evidence of Dr Bodel would provide a “fresh perspective” in relation to the contribution of Mr Smith’s employment to his hip condition.

Mr Richards

8.          Mr Richards submitted that the terms upon which the matter was remitted to the AAT made it clear that it would be unnecessary and, indeed, inappropriate for further evidence to be heard by the AAT. He submitted that the matter should be determined only on the basis of written submissions from the parties. He submitted that this approach flowed from the manner in which Buchanan J, in his judgement, expressed his conclusion. 

New Evidence

9. As I understand the judgement of the majority in the Full Court, I fell into error in the initial decision by determining that Mr Smith’s claimed condition was a “disease” which had its onset in 1997, matters relating to s 7(4) of the Act, before I made findings in relation to issues of causation, matters relating to s 14 of the Act. This was because the claimed condition was an “ailment” which could only be a “disease”, as those terms are defined in
s 4 of the Act, if it was contributed to in a material degree by Mr Smith’s employment. In the further consideration and determination, the matter of contribution by Mr Smith’s employment must be considered before any consideration of the timing of the onset of the condition.

10.       In the event that Dr Bodel’s evidence is admitted, there would need to be a full hearing so that his evidence can be tested and in order for the respondent to call evidence on its own behalf. It seems that Mr Mrsic also wishes to have Mr Smith called so that he can be cross-examined on aspects of his employment. Mr Mrsic now expresses concern about a shortfall of evidence led at the initial hearing. However, he had full opportunity at the initial hearing to provide the evidence he required in the management of Mr Smith’s case. Even though Professor Sambrook was unavailable, his reports were in evidence. Mr Mrsic also called Dr Browne to give evidence. I do not accept that the terms of the remittal by the Court extend to enabling him to call new evidence and to re-argue the prospects of his case. The “Conclusion” of Buchanan J makes it clear that the matter was remitted in a more limited way than a full rehearing.

11.       In the result, I have determined that the matter is to proceed on the papers with written submissions to be made by both parties.

Date of Hearing  30 October 2013
Date of Decision  30 October 2013
Date of Written Reasons              11 November 2013

Counsel for the Applicant             Mr J Mrsic
Solicitors for the Applicant           T D Kelly and Co
Counsel for the Respondent         Mr D Richards
Solicitors for the Respondent       Dibbs Barker