A recent appeal brought before the Federal Court by the Administrative Appeals Tribunal (AAT) has shown how important witnesses can be in determining the validity of workers compensation claims. In 2007 a Department of Defence employee claimed he had lifted a 35kg toolbox from a cabinet and suffered a significant injury to his back. Comcare initially accepted the claim for a disc protrusion/rupture but later denied liability in 2010 after it decided the claim wasn’t well founded.
The full bench of the Federal Court heard that at about the time of the alleged incident the worker had told three colleagues he hurt himself whilst jogging. One of the colleagues further went on to say that she had seen the worker remove two items from within the toolbox around the time of the alleged incident, but had not seen him lift the box or show any sign of pain.
The worker argued the AAT’s decision was “inconsistent with common sense and common experience”. However Chief Justice James Allsop and Justices Richard Tracey and Anna Katzmann found the tribunals findings to be “lucid and well reasoned”.
As is known with back injuries disc protrusions or ruptures they can occur spontaneously or develop over time, an activity such as Jogging could cause such an injury. The bench heard medical evidence to this effect.
The worker denied ever jogging and stated the AAT should have found in his favour due to their being no “direct proof”. Justice Katzmann said this was “a simple case of who should be believed”.
“It is true that direct proof was not available about when the disc prolapse occurred, but direct proof was available about whether [the worker] injured his back removing and replacing the toolbox,” she said, in dismissing the worker’s appeal.
“He said he hurt his back at the time and felt excruciating pain. The Tribunal considered that [his] description of the pain was such that, if it were true, one of his fellow employees could not have failed to notice his discomfort.
A full transcript of the proceedings can be viewed by clicking here
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