Liability
Kowalski and Military Rehabilitation and Compensation Commission [2009] AATA 38 (21 January 2009) Adelaide
The Applicant sought review of four separate reviewable decisions made by the Respondent, which related to two claims for compensation in respect of a duodenal ulcer and two claims for psychological/psychiatric illness including major depression and generalised anxiety, and consequential illnesses and disease including mental illness, hypertension, heart attack, Type 2 diabetes and obesity.
One of the decisions affirmed a primary determination of the Respondent made in April 205 which disallowed a claim for compensation for “major depression and generalised anxiety, heart attack and open heart surgery” and “obesity and Type 2 diabetes” arising out the Applicant’s employment. This decision was reviewed and affirmed on the ground that the available medical evidence failed to support a causal relationship between the claimed conditions and the Applicant’s employment.
In the present proceeding, the Tribunal opined that the Applicant’s employment did not contribute in any degree, let alone a material degree, to the diseases for which the Applicant claimed compensation. The Tribunal noted that the Applicant had proven that he was under stress at work however, there was no evidence to establish that stress at work in any way contributed to any of the diseases of which the Applicant complained, let alone that the stress contributed materially.
The tribunal affirmed this part of the decision under review.
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 & Costs
No decisions
Notice Provisions & Time Limits
No decisions
Recovery of Compensation
No decisions
Incapacity
Kowalski and Military Rehabilitation and Compensation Commission [2009] AATA 38 (21 January 2009) Adelaide
The Applicant sought review of four separate reviewable decisions made by the Respondent, which related to two claims for compensation in respect of a duodenal ulcer and two claims for psychological/psychiatric illness including major depression and generalised anxiety, and consequential illnesses and disease including mental illness, hypertension, heart attack, Type 2 diabetes and obesity.
Duodenal ulcer
The Applicant sought review of a decision which affirmed a determination made in June 2005 that the Applicant was not entitled to receive incapacity benefits in respect of a duodenal ulcer. The Applicant was paid compensation for this condition on nine separate occasions between April 1974 and March 1981, however, upon review, it was held that the Applicant had failed to prove his claim for incapacity as at the date of the claim, as the evidence suggested that the Applicant no longer suffered symptoms as a result of the ulcer.
The Tribunal noted that the undisputed evidence of a gastroenterologist was that the duodenal ulcer had been cured and that the Applicant was free of that disease as at 1 July 1999. On that basis, it found that it was appropriate to reject the Applicant’s claim for incapacity benefits.
The tribunal affirmed this part of the decision under review.
Psychological and/or psychiatric illness
Another determination made in May 2006, which denied the Applicant’s claim for incapacity payments for psychological and/or a psychiatric illness, was affirmed by the Respondent in June 2006. The reviewable decision revoked the primary determination and instead decided that a determination on the Applicant’s claim should be delayed until such time as liability was accepted to pay compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’).
Given that the tribunal was satisfied that there was no liability resting upon the Respondent to pay compensation under section 14 of the 1988 Act in respect of the claimed psychological or psychiatric condition, it decided that it would be appropriate to revoke the reviewable decision and instead affirm the decision of May 2006 denying the Applicant’s claim for incapacity payments for his condition.
Permanent Impairment
Kowalski and Military Rehabilitation and Compensation Commission [2009] AATA 38 (21 January 2009) Adelaide
The Applicant sought review of four separate reviewable decisions made by the Respondent, which related to two claims for compensation in respect of a duodenal ulcer and two claims for psychological/psychiatric illness including major depression and generalised anxiety, and consequential illnesses and disease including mental illness, hypertension, heart attack, Type 2 diabetes and obesity.
Duodenal ulcer
A decision made in May 2005, which determined that the Applicant was not entitled to compensation for permanent impairment as a result of the duodenal ulcer, was affirmed by the Respondent in November 2005. The Applicant’s claim was denied on two grounds. First, because the evidence indicated that the Applicant’s impairment from the ulcer was not permanent; and secondly, the Compensation (Commonwealth Employees) Act 1971 (Cth) (‘the 1971 Act’) did not provide for payment of lump sum compensation for a condition of “duodenal ulcer” that became permanent at any time prior to 1 December 1988.
Given the findings it made with respect to incapacity benefits, the Tribunal rejected the Applicant’s cause in this regard. The undisputed evidence of the gastroenterologist indicated that the duodenal ulcer was cured by 1 July 1999 and that the Applicant no longer suffered from that condition. The Tribunal noted that even if the Applicant did suffer from a duodenal ulcer, he would not be entitled to compensation for a permanent impairment if the impairment became permanent prior to the commencement of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’). It was stated that the provisions of sections 124(1A) and 124(2) of the 1988 Act applied and consideration needed to be given to the 1971 Act to determine whether that Act allowed for a lump sum payment for permanent impairment. Section 39 of the 1971 Act discloses that no such lump sum was payable for such a permanent impairment.
The tribunal affirmed this part of the decision under review.
Psychological and/or psychiatric illness
Another determination made in May 2006, which denied the Applicant’s claim for permanent impairment and non-economic loss for psychological and/or a psychiatric illness, was affirmed by the Respondent in June 2006. The reviewable decision revoked the primary determination and instead decided that a determination on the Applicant’s claim should be delayed until such time as liability was accepted to pay compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the 1988 Act’).
Given that the tribunal was satisfied that there was no liability resting upon the Respondent to pay compensation under section 14 of the 1988 Act in respect of the claimed psychological or psychiatric condition, it decided that it would be appropriate to revoke the reviewable decision and instead affirm the decision of May 2006 denying the Applicant’s claim for permanent impairment and non-economic loss for his condition.
Rehabilitation
No decisions.
Aids and Appliances
No decisions.
Household Assistance
No decisions.
Medical Expenses
Kowalski and Military Rehabilitation and Compensation Commission [2009] AATA 38 (21 January 2009) Adelaide
Psychological and/or psychiatric illness
Another determination made in May 2006, which denied the Applicant’s claim for medical expenses for psychological and/or a psychiatric illness was affirmed by the Respondent in June 2006. The reviewable decision revoked the primary determination and instead decided that a determination on the Applicant’s claim should be delayed until such time as liability was accepted to pay compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Given that the tribunal was satisfied that there was no liability resting upon the Respondent to pay compensation under section 14 of the 1988 Act in respect of the claimed psychological or psychiatric condition, it decided that it would be appropriate to revoke the reviewable decision and instead affirm the decision of May 2006 denying the Applicant’s claim for medical expenses for his condition.
