Decisions for the week ending 26 February 2010 regarding:
Liability
Guirguis and Comcare [2010] AATA 139 (26 February 2010) Sydney
In 1998, the Applicant injured her right foot during a fall she sustained at work. The Applicant lodged a claim for compensation for which the Respondent accepted liability in June 1999 under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) for “a fracture of one or more phalanges” of the Applicant’s right foot. In May 2002, the Respondent denied liability for the Applicant’s subsequent claim for permanent impairment and non-economic loss and determined that she no longer suffered a compensable injury. The Applicant sought review by the Tribunal of those decisions and her claims were finalised in January 2003 by consent orders.
The current claim before the Tribunal was that the Applicant suffered from chronic pain disorder resulting from the workplace injury. The Respondent did not dispute that chronic pain disorder may constitute a compensable ailment within the meaning of the 1988 Act, however, it disputed that the Applicant suffered from a chronic pain disorder and, even if she did, it was not related to her fall at work.
The issues for the Tribunal were whether the Applicant suffered from a chronic pain disorder, and, if so, whether it was contributed to in a material degree by the injury to her right foot. The Tribunal noted that there was no evidence of the Applicant having ankle pain until 2001, some three years after her fall. The evidence supported a conclusion that any continuing symptoms were the result of degenerative change due to aging. The evidence was also strongly suggestive of exaggeration, if not fabrication, of the Applicant’s symptoms.
On the weight of the medical evidence before it, the Tribunal was not satisfied that the Applicant suffered from a chronic pain disorder. The Tribunal noted that if the Applicant suffered chronic pain, it was not satisfied that it constituted an ailment, and therefore a disease, within the meaning of the 1988 Act, or that the fall at work in 1988 contributed to it in a material degree.
The Tribunal affirmed the decision under review.
Hanley v Comcare [2010] AATA 132 (22 February 2010) Brisbane
The Applicant injured his neck in motor vehicle accidents on the way to or from work on three occasions. In the current proceedings, he alleged that he suffered from chronic neck pain and that the situation was complicated by the development of a chronic pain disorder that was attributable to the pain from the work-related injuries. While the Respondent had paid compensation to the Applicant in the past, it denied it was liable to compensate the Applicant under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) in respect of the neck condition (including the chronic pain disorder) after November 2009.
The Respondent did not dispute that the Applicant was experiencing neck pain, however, it argued that the pain was not attributable to the Applicant’s work, or if was, liability was excluded because the work events in question included reasonable disciplinary proceedings taken against the Applicant.
Having considered the evidence in its totality, the Tribunal noted that the Applicant’s condition developed for a number of reasons that included the pain which flowed from the work-related accidents, which occurred in 1998 and 1999, and workplace stress associated with problems over a special chair that was installed to accommodate the Applicant’s work needs and disciplinary proceedings.
The Tribunal noted that while conflict in the workplace might have been compensable under the 1988 Act in some circumstances, section 4(1) of the 1988 Act (before it was amended) said that an injury, disease or aggravation that was “a result of reasonable disciplinary action taken against the employee” would not be considered to be an “injury” for the purposes of the 1988 Act. The Tribunal highlighted the decision in Hart v Comcare [2005] FCAFC 16 that if disciplinary proceedings made a contribution to the onset of the condition, the condition ceased to be regarded as an injury. The Tribunal was satisfied that the disciplinary proceedings taken against the Applicant were reasonable, and thus, the Applicant’s claim could not succeed because the proceedings made a contribution to the onset or aggravation of the Applicant’s neck condition and chronic pain syndrome.
The Tribunal affirmed this reviewable decision.
Sambastian and Australian Postal Corporation [2010] AATA 141 (26 February 2010) Adelaide
The Applicant claimed that he had injured his right elbow in 2002 in the course of his employment with the Respondent. Therefore, one of the matters before the Tribunal concerned the Applicant’s claim for compensation for a right elbow injury.
In his evidence, the Applicant described an incident that caused his elbow injury. He said that in March 2002, while he was delivering mail, the front wheel of his motorcycle became caught between the grass/dirt area and the footpath, causing him to lose control. The motorbike then collided with the front wall of the adjacent property, jarring his right elbow.
The Tribunal found that the condition of the Applicant’s right elbow, as confirmed by an MRI examination, and the Applicant’s evidence as to his intermittent symptoms in the elbow, were consistent with an injury to the elbow occurring at the time and in the manner he described, and that his elbow injury was caused by the impact with the wall as he claimed. The Respondent was accordingly liable for compensation in respect of this injury, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
The Tribunal set aside the decision under review and substituted another decision that the Respondent was liable for compensation in respect of the Applicant’s right elbow injury.
Failure to obtain a benefit
No decisions.
Reasonable disciplinary action
No decisions.
Section 6A: unintentional consequences
No decisions.
No decisions.
No decisions.
No decisions.
No decisions.
No decisions.
Incapacity
Hanley v Comcare [2010] AATA 132 (22 February 2010) Brisbane
The relevant facts in relation to this application were discussed under “Liability”. One of the questions for the Tribunal was whether the Applicant was entitled to compensation under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of his neck pain.
The Tribunal accepted the uncontested medical evidence that the 2003 motor vehicle accident caused, at most, a temporary aggravation to the neck condition. The course of the worsening degenerative condition was not changed by the event. It followed that there was no right to ongoing compensation arising out of the 2003 accident.
The Tribunal affirmed this reviewable decision.
No decisions.
Medical expenses
Hanley v Comcare [2010] AATA 132 (22 February 2010) Brisbane
The relevant facts in relation to this application were discussed under “Liability”. One of the questions for the Tribunal was whether the Applicant was entitled to compensation under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of his neck pain.
The Tribunal accepted the uncontested medical evidence that the 2003 motor vehicle accident caused, at most, a temporary aggravation to the neck condition. The course of the worsening degenerative condition was not changed by the event. It followed that there was no right to ongoing compensation arising out of the 2003 accident.
The Tribunal affirmed this reviewable decision.
Rehabilitation
Sambastian and Australian Postal Corporation [2010] AATA 141 (26 February 2010) Adelaide
The Applicant was an employee of the Respondent and he injured his left shoulder in August 2001 in the course of his employment, as a result of which he experienced aggravations of that injury during his employment at various times between 2003 and 2005. The Applicant went overseas for personal reasons in September 2005, and returned about one year later. He was due to resume work with the Respondent in October 2006, but did not do so, and claimed that he remained incapacitated from working as a postal delivery officer.
The Respondent provided a rehabilitation program which was to commence in April 2007. The Applicant claimed that the work entailed in the program would have aggravated his shoulder condition. The Respondent first rejected his claim for compensation for his shoulder injury, but later accepted liability for it, and for aggravations of it. However, the Respondent made a reviewable decision that the Applicant’s entitlement to compensation was suspended because he refused, without reasonable excuse, to undertake the rehabilitation program. The Applicant applied to the Tribunal for review of this decision.
In terms of the Applicant’s refusal to undertake a rehabilitation program, the issues for the Tribunal concerned whether the Applicant refused or failed, without reasonable excuse, to undertake the rehabilitation program, and whether by virtue of section 37(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”), his rights to compensation under the 1988 Act were suspended.
The Tribunal considered that in order to determine the reasonableness of the Applicant’s refusal to undertake the rehabilitation program as at the date of that refusal, evidence of subsequent information and events could, and should, if relevant, be taken into account. That included evidence from the Applicant as to his continuing symptoms and condition, a subsequent assessment by an orthopaedic surgeon in relation to the left shoulder, a full investigation of the right elbow condition with the benefit of an MRI scan, a further report from an occupational physician, further evidence from an Associate Professor, the reports of a rheumatologist, and the evidence, including further medical evidence provided by each party, in the current proceedings.
The Tribunal concluded that there was insufficient evidence before it in relation to the issues which it thought should be further investigated to enable it to make a properly informed decision as to whether or not there was a reasonable excuse for the Applicant’s refusal to undertake the rehabilitation program. In all of the circumstances, the Tribunal considered that the appropriate decision was to remit the decision, pursuant to section42D of the Administrative Appeals Tribunal Act 1975 (Cth), in relation to the refusal to undergo the rehabilitation program to the Respondent.
No decisions.
No decisions.
