Liability
Smith and Comcare [2007] AATA 1796 (25 September 2007), Canberra – ACT.
Here, the Tribunal had to consider if the applicant would be excluded from receiving compensation under s7(7) SRCA.
In 1998 and 1999 the applicant worked at the Department of Primary Industries and was involved in restructuring, which ultimately led to her redundancy. She was treated at the time for situational depression. In 2000, she applied and was successful in obtaining employment with the ACT Department of Health. In a health questionnaire, the applicant noted that she had not suffered from depression. The appellant then sought medical treatment for problems with sleeping. There was no record of the applicant suffering stress or depression since 1999 until it was reported in July 2001. However, since July 2001, the applicant suffered symptoms of stress and depression and in her claim for compensation in 2004, she noted the injury as ‘agitated stress and depression’ but when asked if she had suffered a similar condition previously she replied, ‘no’.
The Tribunal determined that the first instance of depression was ‘situational depression’ and that the word ‘depression’ by itself as listed in the health questionnaire could have many connotations. On this basis, it was difficult to prove that the applicant made either wilful or false representations as to a previous condition. This was further supported by the medical evidence which diagnosed the 1999 condition as different to the 2004 claimed condition. Thus, the claimant would be entitled to receive compensation.
JAL and Comcare [2007] AATA 1810 (25 September 2007), Hobart – Tasmania
The Tribunal had to decide whether the applicant’s upper body disabilities were as a result of a workplace injury. Three applications were made in relation to injuries suffered during work placement. The applicant also received a disability allowance for a number of congenital abnormalities. The initial claim in October 2001 was for sprain of unspecified site of shoulder and upper arm and wrist sprain. This was accepted with the later condition of intervertebral disc disorder – thoracic added in January 2005.
In December 2002, the applicant claimed for loss of allowance whilst on work placement, on the basis that the allowance be part of her Net Weekly Earnings (NWE). This was rejected and amended to a calculation of NWE as nil at the date of injury. This decision was under review.
In March 2006, Comcare determined that the applicant was not entitled to compensation for medical treatment based on a medical report which noted that the applicant was suffering from a mild form of cerebral palsy rather than thoracic disorder. This decision was also under review.
A permanent impairment claim was then made but withdrawn during these proceedings.
There were competing medical reports tendered to the Tribunal. Much of the evidence relied on by the respondent failed to take into account the applicant’s pre-existing idiosyncratic congenital abnormalities. This then led to assessments of the applicant’s sequelae against the capacity of a normal and healthy female adult rather than against the capacity of a person of the applicant’s pre-existing condition. Therefore, it was determined from the medical reports that the applicant could be compensated for her injuries. In terms of NWE, the allowance was to be payable and taken into account as ‘factor A’ when assessing under s8(1) SRCA.
Exclusions
Failure to obtain a benefit
No decisions
Reasonable disciplinary action
No decisions
Section 6A: Unintentional Consequences
No decisions
Journey Claims
No decisions
Jurisdiction
No decisions
Procedure
Farnaby and Military Rehabilitation and Compensation Commission [2007] AATA 1792 (21 September 2007), Hobart – Tasmania
The Tribunal had to determine whether legal professional privilege applied to the AAT in this matter. The applicant applied to have the decision to deny compensation reviewed. The applicant’s solicitors then corresponded with two doctors. The respondent then sought access to the correspondence, but the applicant’s solicitors claimed the circumstance in which the correspondence was made attracted the privilege. It was decided that the documents were communications between the lawyer and a third party but the decision as to privilege was left to the tribunal.
The Tribunal noted that in order to determine this issue, they needed to look at the actual proceedings to see whether they warranted use of the privilege. Following previous decisions, it was determined that the privilege applied to proceedings in the AAT and that the privilege applied where there was confidential communication for the purpose of judicial or quasi-judicial proceedings. The Tribunal accepted that it would be defined as either judicial or quasi-judicial and that in any case there was no basis to deny the application on this principle. Therefore, the privilege was upheld.
Butler v Telstra Corporation Ltd [2007] FCA 1504 (27 September 2007), Sydney – New South Wales
The court had to determine whether the applicant had been denied procedural fairness, whether the AAT took into account irrelevant considerations and whether there had been an error of law.
It was not in dispute that the applicant had a condition (carpal tunnel syndrome) in relation to her left arm. However, there was an issue as to whether this condition was work-related. The Tribunal had determined that the applicant had taken frequentbreaks in her keying and that she had volunteered for additional work in 2002. Although the claimant was experiencing pain, she did not notify her work and in 2003 asked to be given more. The Tribunal looked at the timing of the claim (near redundancy) and the length of time between the onset and her notifying her workplace, noting the effect this had on the weight of her evidence. The applicant also introduced evidence that her repetitive typing would equate to carpal tunnel syndrome. Furthermore, five medial reports were tendered with opposing views as to the cause. In the end, the Tribunal determined that the carpal tunnel syndrome was not caused by the applicant’s work.
In terms of procedural fairness, the applicant claimed she was not given a chance to respond to allegations that she did not hold the telephone in her left hand and symptoms developed after she had stopped work. She also claimed that she was not allowed to tender medical reports. With respect to not being allowed to respond, the court found that cross examination allowed the applicant to respond to such allegations when she was put on notice of the effect they would have on her credibility. The court also found that the applicant did not give any detail as to what medical evidence she was referring to and so made it impossible for the court to determine if the Tribunal should have considered the report or if it added to the reports already tendered.
With respect to the irrelevant considerations, the applicant claimed that the onset of symptoms in her right arm were not relevant. However, the court rejected this and held that as the symptoms in her right arm were similar to those in her left arm and the Tribunal was free to consider the evidence relating to it in its determination.
In terms of the assertion of an error of law, the applicant claimed that the Tribunal misconstrued the definition of injury under the SRCA so as to exclude the instance of aggravation. However, it was noted that from the medical reports and the Tribunal’s reasoning, the Tribunal did take into account the notion of aggravation of injury as well.
Thus, the application was dismissed.
Notice Provisions & Time Limits
No decisions
Incapacity
No decisions
Permanent Impairment
Gottschalk and Comcare [2007] AATA 1799 (25 September 2007), Hobart – Tasmania
In this case, the Tribunal had to determine whether the applicant suffered a permanent impairment. The applicant suffered a back injury in 2002. Liability was accepted in March 2003 for incapacity arising from ‘lumbar sprain’. Payments ceased in July 2003. In February 2006, the claimant unsuccessfully lodged an application for permanent impairment on the basis that the injury was not permanent and was likely to improve.
From medical reports, the Tribunal accepted that the applicant continued to suffer from lumbar impairment. Although there was evidence that the applicant had suffered back pain prior to his injury in 2002, it was noted that given the severity of the pain and circumstances of the injury, such evidence was not persuasive so as to render the condition non-work related.
In terms of permanent impairment, the Tribunal found that the pain was severe and that from the evidence, the impairment was permanent. Under table 9.6 it was assessed as 10% Whole Person Impairment.
Rehabilitation
No decisions
Aids and Appliances
No decisions
Household Assistance
No decisions
Medical Expenses
No decisions
