Liability
O’Kane and Comcare [2008] AATA 593 (9 July 2008)
The claimant was employed by the Australian Hydrographic Service in June 2004 under a non-ongoing contract. He was offered four further non- ongoing contracts until June 2005, when he was offered a Professional Service Provider’s contract, which he perceived to be a less beneficial arrangement. The claimant claimed he suffered adjustment disorder as a result of a meeting on 15 June 2005 regarding the contract.
Did the claimant sustain an injury?
The tribunal was satisfied on the basis of the medical evidence provided that the claimant did suffer an adjustment disorder following the meeting on 15 June 2007, but that he no longer suffered from that condition.
Did the injury arise out of or in the course of employment?
The tribunal was satisfied that the injury arose of the claimant’s employment as the meeting on 15 July 2005 was during his normal working hours and was requested by his manager in the course of his duties.
Watts and Military Rehabilitation and Compensation Commission [2008] AATA 597 (10 July 2008)
The claimant served in the Royal Australian Army from 2000 until he was discharged on
medical grounds in 2006. In 2004, he was diagnosed as suffering psoriatic arthritis, alternatively called psoriatic arthropathy. In 2005, the claimant submitted a claim for compensation is respect of psoriatic arthropathy. At first instance, the liability for temporary aggravation of the condition was accepted but in 2006, after reconsideration, this decision was revoked.
The tribunal accepted that it was not disputed that the claimant suffered from moderately severe psoriatic arthropathy and that from time to time this condition caused incapacity for work and impairment. The tribunal also accepted that the onset of the condition occurred whilst the claimant was serving in the Royal Australian Army and that it was a disease within the meaning of the Act. The only issue in dispute was whether the claimant’s employment contributed to the psoriatic arthropathy or alternatively to an aggravation of the psoriatic arthropathy in a material degree.
The tribunal was satisfied on the basis of the available evidence that at some time in early 2003, in the course of his employment, possibly following an incident, involving jumping from one boat to another, the claimant suffered pain his right foot. The tribunal determined that the claimant had suffered similar pain previously and although the current pain was troublesome, it did not prevent him from continuing with his duties. It was agreed between the parties that the claimant’s employment did not cause his disease. Therefore, the question to be determined was whether the pain that he suffered was an aggravation and/ or acceleration of his underlying disease and if so whether the aggravation and/or acceleration was contributed to in a material degree by his employment.
Aggravation
The tribunal held, on the basis of the evidence provided, that the claimant had an inflammation in his foot prior to the jumping incident and his work activity had made the inflammation worse. However, the tribunal was satisfied that this was merely a temporary aggravation of a pre-existing inflammation. It was also held that the aggravation did not precipitate the disease itself or make the disease more severe, but merely unmasked it.
Acceleration
The tribunal found that, although the jumping incident caused the claimant to suffer some symptoms sooner than may have been expected, ultimately the evidence supported a conclusion that the claimant’s subsequent difficulties were consistent with the expected progression of his disease.
Material degree
The tribunal was satisfied that the claimant’s employment made some contribution to his disease but found that the contribution was minimal and that any effects of that contribution were short lived and had ceased. Therefore, the contribution did not meet the necessary threshold of significance to have contributed “in a material degree”.
Therefore, the decision under review was affirmed.
Exclusions
Failure to obtain a benefit
O’Kane and Comcare [2008] AATA 593 (9 July 2008)
Although satisfied that the claimant suffered an injury, which arose out of or during his course of employment, the tribunal also considered whether he suffered the injury as a result of the failure to obtain a benefit.
The claimant claimed that during the meeting on 15 June 2005 he was dismissed from his employment and as a result he suffered an adjustment disorder. The tribunal was satisfied on the basis of the factual evidence that the claimant was not dismissed, but noted that the meeting did amount to a failure to obtain a benefit. The tribunal noted that the benefit discussed at the meeting was rate of payment under the non-ongoing contract that was shortly to expire. The tribunal held that the benefit not obtained by him was a future rate of payment identical or higher than the rate of payment under his due to expire ongoing contract. The tribunal also noted that the claimant was willing to return to the service and this finding in addition to his presentation to a medical practitioner, led to a conclusion that he was most concerned with his rate of payment and other terms of employment. The tribunal determined that his failure to obtain a continuation of his current rate of payment materially contributed to his adjustment disorder. Therefore, the claimant’s adjustment disorder was excluded from the definition of “injury” and Comcare was not liable to pay compensation.
Reasonable disciplinary action
No decisions.
Section 6A: Unintentional Consequences
No decisions
Journey Claims
No decisions
Jurisdiction
Irwin and Military Rehabilitation and Compensation Commission [2008] AATA 601 (11 July 2008)
The issue for determination in this instance was whether, on a review by the tribunal of a decision of the Military Rehabilitation and Compensation Commission that denied liability to pay compensation pursuant to the Military Rehabilitation and Compensation Act 2004 (Cth) (the MRC Act) to a Defence Force member, it is open to the tribunal to determine the entitlement to compensation if the issue of liability is determined by the tribunal favourably to the Defence Force member.
The Commission argued that it was not open to the claimant to make a valid claim for compensation, that is, a claim under s 319(1)(d) of the MRC Act, until the Commission had accepted liability for claim under one or other of ss319(1)(a),(b) or (c) of that Act. The tribunal agreed with this proposition in light of the fact that the tribunal’s powers for the purposes of reviewing a decision are no greater than the powers of the original decision maker: Lees v Comcare (1999) 56 ALD 84.
Therefore, the tribunal held that the tribunal could consider the issue of entitlement only if the power to consider that question had been available to the decision maker at the reconsideration stage. The tribunal noted that power would have been available at that stage, only if the original decision maker had considered, or had been obliged to consider, the issue of entitlement as well as that of liability. In this instance, the original decision maker did not consider the entitlement question.
The tribunal distinguished the case from Re Fuad and Telstra Corporation Ltd (2004) 39 AAR 496 in light of the different structure of the Safety Rehabilitation and Compensation Act 1988 (Cth), so far as the making of claims is concerned.
Procedure & Costs
No decisions
Notice Provisions & Time Limits
No decisions
Incapacity
No decisions
Permanent Impairment
No decisions
Rehabilitation
No decisions
Aids and Appliances
No decisions
Household Assistance
No decisions
Medical Expenses
No decisions
If you would like more information, please contact a member of our National Commonwealth Compensation Team listed on the right hand side of the screen.
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