What's New in Commonwealth Compensation

• Liability
• Exclusions
• Section 6A: unintentional consequences
• Journey claims
• Jurisdiction
• Procedure & costs
• Notice provisions & time limits
• Recovery of compensation
• Incapacity
• Permanent impairment
• Medical expenses
• Rehabilitation
• Aids and appliances
• Household assistance

Liability

Estate of Eduardo Ferro and Australian Postal Corporation [2010] AATA 119 (15 February 2010) Brisbane

In January 2004, the deceased collapsed at his workplace and ultimately passed away in May 2004. In July 2008, the Respondent made a determination whereby there was no liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) in respect of the deceased’s death, on the basis of a cardiologist’s report. In August 2008, the Respondent affirmed the determination and the deceased’s wife subsequently sought a review of this decision by the Tribunal.

The Tribunal had to determine:

• whether what occurred to the deceased in January 2004 was an injury, as opposed to a disease, within the meaning of the 1988 Act;
• whether what occurred to the deceased in January 2004 was a disease or an aggravation of a disease within the meaning of the 1988 Act; and
• if the deceased suffered an injury within the meaning of the 1988 Act, whether such injury resulted in his death.

Firstly, the Tribunal was satisfied that the event which occurred in January 2004, in particular the “ventricular fibrillation”, was something that could be described as a sudden and ascertainable, or dramatic psychological change or disturbance of the normal physiological state which qualified for the characterisation as an “injury” in the primary sense of the word: Kennedy Cleaning v Petroska [2000] HCA 45; (2000) 200 CLR 286.

Secondly, given that the incident occurred within the protected area of employment, the Tribunal was further satisfied that the injury was ordinarily compensable without proof of specific causal connection with the deceased’s employment.

The Tribunal set aside the decision under review and remitted the matter to the Respondent.

Starr and Military Rehabilitation and Compensation Commission [2010] AATA 116 (15 February 2010) Brisbane

The Applicant sought compensation from the Respondent in relation to psychological injuries alleged to have arisen out of his employment. Whilst the Respondent denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) because it did not accept the Applicant’s account of his involvement in the incidents in question, before the Tribunal, the Respondent accepted that the Applicant witnessed three incidents and, instead, alleged that the medical evidence did not establish that he suffered from post traumatic stress disorder (“PTSD”).

The Tribunal highlighted that the medical evidence was crucial to the outcome of this case and it heard evidence from two consultant psychiatrists. Whilst one of the specialists diagnosed the Applicant as suffering from several psychological disorders, the other specialist did not find any evidence of any impairment in the Applicant’s occupational functioning. Having preferred the opinion of the specialist who provided a more exact analysis of the diagnostic criteria and had more access to the records of the Applicant’s career, the Tribunal was satisfied that the Applicant did not suffer from PTSD.

The Tribunal affirmed the decision under review.

Williams and Comcare [2010] AATA 129 (19 February 2010) Canberra

In 2005, the Applicant developed severe asthma for which she made a claim for compensation in March 2007. In September 2007, the Respondent denied liability, a decision upheld on reconsideration in June 2008. In July 2008, the Applicant sought further review by the Tribunal.

In terms of liability, the Tribunal had to determine:

• whether the Applicant suffered an ‘injury’, namely a ‘disease’;
• whether the Respondent was liable to compensate the Applicant under section 7(1) of the 1988 Act;
• if the Applicant suffered from a disease whether that disease was contributed to, in a material degree, by her employment;
• if there was a material contribution between the Applicant’s claimed disease and her employment, whether the employment-related effects of that condition had ceased; and
• if so, when did the employment-related effects of the Applicant’s disease cease.

In relation to the first issue, the Tribunal noted that there was no dispute that the Applicant suffered from asthma, an ‘ailment’ under section 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”), and hence a ‘disease’. The characterisation of the disease was the more controversial issue for the Tribunal and whether the Applicant’s asthma could be classified as an occupational disease for the purposes of section 7 of the 1988 Act, or an ‘injury’, namely a ‘disease’ which had been contributed to, to a material degree, by her employment for the purposes of section 14 of the 1988 Act, was a key question. Based on the extensive research before it, the Tribunal found that the Applicant suffered from irritant-induced asthma, rather than the subset, reactive airways dysfunction syndrome, both being forms of occupational asthma. The Tribunal also found that the Applicant’s exposure, although not high-level, was likely to occur since her desk was situated some 8-10 metres from a wall which was demolished.

In terms of the second issue, the Tribunal highlighted that section 7 of the 1988 Act identified certain occupational diseases which, if contracted in the circumstances outlined in the section, created a presumption that the disease had been contributed to by employment. The relevant prescribed disease in these circumstances was ‘Occupational asthma caused by sensitising agents or irritants’. The specified employment which related to this disease was described as ‘employment processes involving asthmagenic agents’. Since no evidence was provided as to other staff or forms of employment conducted in the relevant work area, it was not possible to establish that the incidence was greater among staff or workmen not involved in or affected by the renovations within the relevant work area. In those circumstances, section 7 of the 1988 Act was not applicable to the Applicant’s case.

As to the third question, the Tribunal noted that there was no question of aggravation of a pre-existing condition. The principal issue concerned the nature of the trigger for the Applicant’s late onset asthma. Having considered the evidence before it, the Tribunal noted that, although the length and extent of the Applicant’s exposure may not have been high, and there was a possible alternative trigger in her upper respiratory condition at the time, given the doubts about the accuracy of the diagnosis of the respiratory infection, the safety information, the peculiar nature of the work premises, the Applicant’s sensitivity, the medical view about the significance of the temporal correlation with the renovations, and the fact that others in her workplace were affected, the Tribunal found that the Applicant’s exposure to dust and fumes at work in 2005 did have a material role in her development of asthma.

In terms of the final two issues, the Tribunal considered research which suggested that there were long-term effects of occupational asthma. In these circumstances, given the history of the Applicant’s condition, the acute nature of her ongoing asthma attacks and the continuing difficulty of management of its symptoms, she appeared to fall within the high percentage of subjects surveyed in whom the effects continued for some time and possibly indefinitely. On that basis, the Tribunal found that the Applicant’s asthma continued to be experienced and the effects could be directly attributed to the initiation in 2005. The employment-related effects of the Applicant’s disease had not ceased.

The Tribunal set aside the decision under review and substituted a decision that the Respondent was liable to compensate the Applicant under section 14 of the 1988 Act.

Williamson and Australian Postal Corporation [2010] AATA 125 (17 February 2010) Brisbane

The Applicant injured her back in the course of her employment in November 2005 and July 2006. The Applicant continued to complain of significant pain in her lower back which she attributed to the earlier incidents. The Respondent contended that what presently affected the Applicant was not an injury related to her employment, however, was the consequence of the natural progression of a constitutional defect.

The Respondent had previously accepted liability to pay compensation to the Applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) for the injuries sustained in 2005 and 2006. The Respondent paid compensation for incapacity and medical expenses in relation to these injuries until September 2007, and her payments were ceased from that date under two decisions on the basis of a report provided by a consultant neurologist. The two decisions were affirmed by the Respondent on reconsideration in January 2008 and it was that decision which was the subject of these proceedings.

On the basis of the medical evidence before it, the Tribunal noted that the Applicant’s condition could be properly described as “a disease” rather than as “an injury (other than a disease)”. Thus, there required to be a contribution “in a material degree” by her employment in accordance with section 4 of the 1988 Act. Whilst the evidence provided by a consultant neurologist satisfied that requirement, the Tribunal did not rely on his opinion given that he was informed by an inaccurate history, both as to the frequency and severity of the Applicant’s past episodes and as to her recovery post 2005. The Tribunal relied upon the views of a consultant neurologist and an orthopaedic surgeon as they provided a more reasoned and logical explanation for the Applicant’s extensive history of back pain. On that basis, the Tribunal was not satisfied that the Applicant’s complaints had any relationship to her employment.

Hands and Military Rehabilitation and Compensation Commission [2010] AATA 120 (15 February 2010) Brisbane

The Applicant sustained an injury in the course of his employment that was an unintended consequence of certain medical treatment provided to him at Commonwealth expense (“abdominal pain”) for which the Responded accepted liability, and, indeed, later accepted a further injury, being a psychiatric condition secondary to the original injury (“the psychiatric condition”). The Applicant was paid compensation, including for permanent impairment.

The dispute before the Tribunal concerned the correct assessment of permanent impairment. A determination was made in March 2004 assessing the Applicant’s abdominal pain as an intermittent condition under Table 13.1 of the Comcare “Guide to the Assessment of the Degree of Permanent Impairment” (“Guide”) and the Applicant was accordingly paid compensation for 10% whole person impairment. The Applicant then completed and lodged two permanent impairment claims in March 2006, one being for the psychiatric condition, and the other for the abdominal pain.

In March 2007, the Respondent rejected the Applicant’s request for an increased assessment for abdominal pain, for reasons that there had not been a 10% increase in impairment. Later in that month, the Applicant was paid compensation for 15% whole person impairment resulting from the psychiatric condition, as assessed under Table 5.1 of the Guide. The Applicant’s solicitors specifically requested reconsideration of the decision made with respect to the abdominal pain.

Therefore, the issue for the Tribunal was whether the Applicant was entitled to a further payment for permanent impairment with respect to abdominal pain. The Tribunal acknowledged that the Applicant suffered from a very disabling level of pain that had affected him in all levels of his life. Taking account of the Applicant’s evidence and the medical evidence as a whole, the Tribunal regarded the evidence of a neurologist as providing the most complete and well-reasoned application of the Guide to the facts. On that basis, the totality of the evidence indicated that the Applicant’s abdominal pain “attacks” occurred up to 30% of the time and caused significant interference with his activities of daily living. Consequently, this satisfied the requirements of an assessment of 30% under Table 13.1 of the Guide and given that the Applicant had been paid 10% by prior determination, he was further entitled to an increase by 20% in that assessment.

The Tribunal set aside the decision under review and substituted the decision that the Applicant had 30% permanent impairment resulting from “left rectus sheath neuropathic pain”.